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AN  OUTLINE   SKETCH    OF   ENGLISH 
CONSTITUTIONAL   HISTORY 


AN   OUTLINE   SKETCH   OF 

ENGLISH  CONSTITUTIONAL 
HISTORY 

GEORGE  BURTON  ADAMS,  Lrrr.D. 


NEW  HAVEN 
YALE  UNIVERSITY  PRESS 

LONDON:  HUMPHREY  MILFORD 

OXFORD  UNIVERSITY  PRESS 

MDCCCCXVIII 


COPYRIGHT,  1918 
BY  YALE  UNIVERSITY  PRESS 


First  published,  February.  1918 


' 


PREFACE 

It  is  very  likely  that  the  task  which  I  have  undertaken 
in  this  little  book  is  an  impossible  one.  Even  to  sketch 
so  long  a  history  in  so  few  words  seems  hopeless,  and  I 
am  sure  that  I  have  left  out  many  things  which  other 
students  of  the  English  constitution  will  think  should 
be  found  here.  I  have  tried  to  keep  in  mind  in  writing 
chiefly  the  desire  to  show  how  modern  liberty  came  to 
be  what  it  is  and  what  foundations  our  institutions  have 
in  the  past  history  of  the  race. 

I  am  indebted  to  the  Editors  for  permission  to  use 
portions  of  an  article  which  appeared  in  the  American 
Historical  Review  for  July,  1915. 

G.  B.  A. 

New  Haven, 

January  22,  1918. 


CONTENTS 

CHAPTER  PAGE 

Introduction         .....  1 

I.     To  the  Great  Charter  ....  12 

II.     From  Magna  Carta  to  Parliament          .  42 

III.  The  Beginning  and  Growth  in  Power  of 

Parliament     .....  57 

IV.  Constitutional  Government  and  Royal 

Reaction          .....  80 

V.     The  Tudor  Strong  Monarchy         .         .  96 

VI.     Parliament  versus  the  King  .         .         .  108 

VII.     The  Victory  of  Parliament  ...  126 

VIII.     The  Victory  Confirmed          ...  141 

IX.     The  Making  of  the  Cabinet  .         .         .  152 

X.     The  Rise  of  Democracy        ...  168 

XI.     The  Progress  of  Reform       ...  189 


Where  freedom  slowly  broadens  down 
From  precedent  to  precedent. 

— Tennyson 


INTRODUCTION 

In  the  course  of  history  there  have  been  two  peoples 
whose  public  law  and  institutions  have  formed  the  basis 
of  many  constitutions  besides  their  own  and  who  have 
exerted  a  wide  influence  upon  government  almost 
throughout  the  world.  In  ancient  times  the  Romans 
built  up  by  force  a  great  empire  which  included  the 
whole  civilized  world,  as  they  knew  it  from  actual  con- 
tact, and  large  regions  which  they  considered  barbarian. 
Even  before  their  empire  was  completed  the  Romans 
began  to  look  upon  it  as  divinely  founded,  preordained 
to  be  the  one  rule  under  which  all  mankind  were  to  be 
permanently  united.  Later  Christian  teachers  adopted 
the  same  philosophy  of  history,  and  the  idea  of  the 
Roman  Empire,  eternal  and  holy,  became  for  centuries 
a  strong  bond  of  union  in  Christendom  at  a  time  when 
most  other  tendencies  were  towards  disruption.  Partly 
from  this  influence  and  partly  from  their  own  intrinsic 
worth,  Roman  law  and  institutions  came  to  prevail  in 
almost  all  Christian  nations  and  in  extensive  regions 
which  were  never  Christian,  and  even  today  they  in- 
fluence more  or  less  strongly  the  government  and  law 
of  nearly  half  the  human  race. 


2  OUTLINE  SKETCH  OF  ENGLISH 

It  was  in  modern  times,  long  after  the  fall  of  any  real 
Roman  Empire,  that  the  British  Empire  began.  In  the 
course  of  three  centuries,  partly  by  conquest  and  partly 
by  expansion  it  occupied  the  whole  of  two  continents, 
North  America  and  Australia,  and  considerable  portions 
of  two  others,  Africa  and  Asia.  Into  these  regions  in 
natural  course  English  public  law  and  institutions  were 
carried.  One  portion  of  the  original  empire,  the  United 
States,  set  up  for  itself  as  an  independent  state  at  a 
time  when  the  constitution  had  not  reached  its  present 
stage.  It  was  an  inevitable  result  that  it  began  a 
development  of  its  own,  distinct  from  that  of  the  mother 
country,  a  development  of  the  constitution  as  it  existed 
at  the  point  of  separation.  In  consequence  the  United 
States  does  not  possess  some  of  the  features  of  later 
growth  which  we  now  consider  to  be  most  striking  in 
the  British  system  of  government.  This  fact  cannot 
obscure,  however,  the  origin  of  our  constitution  in  the 
past  history  of  England,  and  to  the  student  the  depend- 
ence historically  of  our  public  law  upon  that  of  England 
is  as  close  as  that  of  our  private  law. 

A  fact  even  more  remarkable  than  the  practical  uni- 
formity of  institutions  throughout  an  empire  so  widely 
scattered  is  the  spread  of  the  constitution  outside  the 
boundaries  of  the  empire.  In  this  case  by  intrinsic 
merit  and  not  by  physical  conquest,  almost  the  whole 
world  has  been  brought  into  the  sphere  of  influence  of 


CONSTITUTIONAL  HISTORY  3 

the  British  constitution.  Curiously  enough  it  is  the 
republics  of  the  world  which  owe  the  least  in  form  to 
this  constitutional  model,  but  even  among  them  the 
indebtedness  is  not  slight.  Among  monarchies  the  way 
of  borrowing  has  been  made  easy  by  the  treatment  of 
the  sovereign  in  the  British  constitution,  as  will  be  later 
more  fully  explained,  and  there  is  scarcely  one  to  be 
found  which  has  not  drawn  upon  it  for  more  or  less 
essential  details. 

This  borrowing  is  true  even  of  those  monarchies 
which  approach  most  nearly  the  absolutist  type  and 
assert  most  loudly  their  independence.  In  the  consti- 
tution of  the  German  Empire,  for  example,  while  the 
essential  features  of  the  English  constitution  are  not 
expressly  affirmed  in  the  written  document,  they  are 
nevertheless  tacitly  implied  and  in  practical  operation 
even  more  directly  allowed  though  without  true  minis- 
terial responsibility.  The  entire  English  constitution 
with  all  its  details  of  public  law  and  practice  could  be 
carried  into  effect  under  the  present  German  constitution 
with  only  one  amendment  of  importance,  the  constitu- 
tion of  the  upper  house  and  its  relation  to  the  lower,  and 
a  really  democratic  government  could  be  secured  by  a 
new  regulation  of  the  right  of  suffrage.  A  progress 
somewhat  similar  in  the  interpretation  of  the  constitu- 
tion in  practice  actually  has  taken  place  in  the  case  of 
Japan,  whose  constitution  was  based  originally  on  that 


4  OUTLINE  SKETCH  OF  ENGLISH 

of  Germany,  but  which  in  practical  operation  has  be- 
come during  the  past  generation  more  and  more  of  the 
English  type.  The  change  has  gone  so  far  that  an 
American  scholar  who  has  closely  observed  Japanese 
politics  for  more  than  twenty  years  can  say  that  Japan 
now  has  a  fully  responsible  ministry. 

It  hardly  remains  to  point  out  the  interest  which  the 
history  of  such  a  constitution,  the  mother  of  such  a 
progeny,  has  for  every  student,  or  the  special  appeal 
which  it  makes  to  the  American.  The  history  of  the 
formation  of  the  British  constitution  is  a  part  of  our 
own  history.  If  it  be  asked  where  the  history  of  our 
institutions  is  to  be  found  previous  to  the  middle  of  the 
seventeenth  century,  there  is  only  one  answer  to  the 
question  which  the  historian  can  give.  It  is  to  be  found 
in  England.  The  history  of  the  long  struggle  by  which 
the  way  was  prepared  for  the  clear  formulation  in  the 
seventeenth  century  of  those  ideas  which  lie  at  the 
foundation  of  all  the  later  development  is  as  much  our 
history  as  it  is  of  any  Englishman.  There  is  to  be  found 
historically  the  origin  of  many  of  those  ideas,  institutions 
and  practices  which  we  regard  as  primarily  our  own 
because  they  were  first  worked  out  into  practical  form 
among  us.  And  it  is  as  justifiable  to  claim  for  our 
present  constitution  an  origin  in  the  English  constitution 
of  1399  as  it  is  to  claim  it  for  the  British  constitution 
as  it  now  exists.  The  creation  and  establishment  of  our 


CONSTITUTIONAL  HISTORY  5 

judicial  institutions  and  common  law,  of  the  supremacy  " 
of  law  over  the  government,  of  our  representative 
system,  of  the  popular  control  of  taxation,  of  the  respon- 
sibility of  ministers  of  government  to  the  legislature, 
and  finally  of  the  principle,  fundamental  to  all  else,  of 
the  sovereignty  of  the  people,  were  the  work  of  our 
English  ancestors. 

It  may  be  that  we  shall  not  remain  an  Anglo-Saxon 
nation  in  blood,  though  the  fact  should  not  be  over- 
looked that  down  to  a  generation  ago  the  various  race 
elements  which  were  mingling  here  were  the  same  as 
those  of  which  the  Anglo-Saxon  race  was  originally 
composed:  Celtic — Irish,  Gaelic,  and  French;  and 
Teutonic — German,  Scandinavian,  and  Dutch.  In  re- 
cent years  many  have  come  to  us  from  nations  far 
removed  in  relationship  from  either  of  these  groups  and 
they  may  contribute  largely  to  the  making  of  the  future 
American.  But  it  must  not  be  forgotten  that,  in  the 
active  carrying  on  of  history,  race  does  not  mean  un- 
mixed blood;  nor  identity  of  race,  identity  of  blood. 
The  great  history-making  races  have  been  of  mixed 
blood,  and  if  we  would  find  the  pure  races,  if  indeed 
there  are  any,  we  must  seek  them  on  the  outskirts  of 
civilization  whither  they  have  been  pushed  by  the 
stronger  races  of  mixed  descent.  The  tests  which 
determine  race  in  history  are  the  characteristics  of  a 
civilization :  common  ideas  and  institutions,  law  and 


6  OUTLINE  SKETCH  OF  ENGLISH 

literature  and  language,  religion  and  art,  a  common  past 
of  some  significance  and  common  aspirations  for  the 
future.  In  all  these  things  we  are  still  Anglo-Saxon  and 
are  likely  to  remain  so,  the  absorptive  force  is  now  so 
great  among  us.  The  constituent  elements  of  our  blood 
-.may  change,  but  race  will  not.  Our  descendants  cen- 
turies hence  are  as  likely  to  find  their  earliest  history 
in  England  as  we  are. 

In  this  sense  and  upon  the  constitutional  side  our 
history  on  English  soil  begins  in  the  Norman  Conquest 
of  England  by  William  the  Conqueror  in  1066.  He  set 
up  a  monarchy  the  most  absolute  in  Western  Europe 
at  that  time  and  introduced,  as  the  ruling  class  under 
himself,  a  feudal  baronage  bound  by  contract  to  assist 
in  the  government.  His  immediate  successors  in  their 
effort  to  carry  farther  the  centralization  of  the  state 
in  their  hands,  and  to  give  it  constitutional  form, 
developed  institutions  and  practices,  which  had  existed 
for  a  long  time  in  more  primitive  form,  into  our  judicial 
organization,  with  its  characteristic  peculiarities  of  cir- 
cuit courts  and  jury  trials,  in  which  began  to  form  at 
once  our  common  law  and  our  equity  system.  The 
success  of  this  royal  centralization  was  so  great  that  it 
invited  tyranny  and  under  John,  near  the  beginning  of 
the  thirteenth  century,  a  successful  baronial  insurrection 
compelled  the  king  to  make  concessions.  Acting  upon 
the  fundamental  idea  that  the  feudal  contract  limited 


CONSTITUTIONAL  HISTORY  7 

the  rights  of  the  king,  the  barons  insisted  that  he  should 
promise  in  a  series  of  particulars,  embodied  in  the  Great 
Charter,  that  he  would  keep  the  law  and  that,  if  he  did 
not,  he  should  recognize  their  right  to  force  him  to  do 
so  in  arms.    Within  a  generation  or  two,  while  the  special 
provisions  of  the  Charter  lost  their  importance,  the  fun-  -v 
damental  principle  that  the  king  must  keep  the  law  and  A 
may  be  rightfully  compelled  to  do  so  became  the  ruling 
principle  of  constitutional  development. 

In  the  meantime  from  another  source,  more  purely 
institutional,  the  representative  system  in  germ  had 
been  introduced.  It  began  at  once  a  rapid  growth, 
largely  because  of  its  practical  usefulness  in  govern- 
ment, into  the  English  Parliament.  At  the  end  of  the 
thirteenth  century  Parliament  established  its  exclusive 
right  to  grant  taxes  though  the  right  was  not  maintained 
in  the  future  without  struggle.  In  the  fourteenth 
century  from  this  beginning,  Parliament  grew  in  power 
by  leaps  and  bounds.  It  perfected  its  control  of  taxa- 
tion, secured  its  right  to  a  voice  in  all  making  of  laws, 
and  began  its  supervision  of  government  policy  by 
enforcing  the  responsibility  of  ministers  of  the  crown 
to  itself.  A  brief  reaction  at  the  close  of  the  century 
towards  irresponsible  monarchy  was  checked  by  revo- 
lution, and  there  followed  a  period  of  more  than  fifty 
yeajs  of  constitutional  government  almost  of  the  modern 
type. 


8  OUTLINE  SKETCH  OF  ENGLISH 

The  sixteenth  century  was  the  scene  of  another 
reaction  towards  despotism,  in  spirit  but  not  in  form, 
for  the  sovereigns  found  it  easier  to  accomplish  their 
will  through  the  constitution  than  against  it.  And  one 
great  constitutional  advance  was  made  in  bringing  the 
church  under  Parliamentary  control.  "With  the  acces- 
sion of  James  I,  in  1603,  two  ideals  of  government,  each 
of  which  had  dominated  some  portion  of  the  past,  were 
brought  into  conflict  with  one  another  for  final  pos- 
session of  the  future,  the  ideals  of  the  supremacy  of  the 
king  and  of  the  supremacy  of  law.  This  conflict  soon 
led  to  the  formulation  of  the  doctrine  of  the  sovereignty 
of  the  people,  first  as  the  necessary  foundation  of  right 
on  which  to  rest  the  supremacy  of  law  which  should  bind 
the  king,  and  soon  after  to  its  practical  recognition  as 
the  basis  of  the  constitution. 

At  this  point  the  constitutional  histories  of  our  two 
states  separate.  In  England  the  experiments  in  the  way 
of  republican  institutions  which  the  revolution  at  the 
middle  of  the  century  had  imposed  upon  the  nation, 
outgrowths  of  past  English  history  developed  by  Puritan 
religious  ideas,  were  abandoned  when  the  historical 
monarchy  was  reestablished.  In  the  simpler  conditions 
of  the  small  American  colonies,  democratic  institutions 
were  easier  to  operate  and  republican  government  be- 
came the  universal  rule.  In  these  republics  the  consti- 
tutional experiments  of  the  Puritans,  which  England 


CONSTITUTIONAL  HISTORY  9 

had  abandoned,  were  continued  and  developed  under 
the  same  influences  but  with  the  added  influence  of  new 
experiences.  By  these  influences,  old  and  new,  our 
national  government  was  formed  a  century  later,  reveal- 
ing on  every  side  its  English  origin,  but  at  the  same 
time  making  important  contributions  of  its  own  to  the 
final  government  of  the  world,  as  for  one  example  in 
the  formation  of  a  nation  by  the  federal  union  of 
separate  states. 

The  English  government  after  1660  necessarily  shows 
at  any  point  of  time  important  differences  to  that  which 
was  developing  in  America,  for  England  dropped  the 
Puritan  experiments  out  of  its  constitutional  history. 
Its  progress  after  1660  linked  itself  on  rather  with  the 
constitution  as  it  existed  in  1603,  plus  however  the  secure 
establishment  of  the  sovereignty  of  the  people  and  the 
supremacy  of  law.  The  great  problem  of  the  future, 
as  England  then  faced  it,  was  to  work  out  practical 
institutions  for  carrying  on  a  government  in  which  real 
sovereignty  should  be  vested  in  the  representatives  of 
the  nation  while  in  form,  for  form  was  unchanged,  it 
should  be  vested  in  the  king.  This  problem  America 
did  not  have  to  face  in  its  little  republics,  and  its  solution 
in  England  in  the  British  cabinet  system  has  given  us 
one  of  the  most  striking  differences  between  the  two 
states.  America  has  the  older  English  cabinet  not  under 
direct  legislative  control,  removable  by  the  legislature 


10  OUTLINE  SKETCH  OF  ENGLISH 

only  through  the  medieval  process  of  impeachment, 
while  England  solved  her  problem  by  dropping  impeach- 
ment and  devising  the  responsible  ministry — the  cabinet 
virtually  appointed  by  the  legislature  and  removable  by 
it,  though  in  legal  formalities  all  is  done  by  the  will  and 
act  of  the  king. 

England  is  really  a  democratic  republic.  If  the  theory 
upon  which  its  cabinet  system  is  based,  that  changes  in 
the  House  of  Commons  are  going  to  reflect  immediately 
changes  of  national  opinion  in  the  country,  operates  in 
actual  practice,  its  government  is  even  more  directly 
under  popular  control  than  ours.  There  would  be  no 
gain  for  political  democracy  in  a  change  from  a  mon- 
archy in  form  of  the  British  type  to  a  republic  in  form. 
On  the  other  hand,  the  retention  of  the  monarchy  in 
England  as  in  theory  still  supreme,  as,  so  far  as  actually 
formulated  law  is  concerned,  almost  absolute,  has  been 
of  the  greatest  value  in  the  spread  of  democratic  insti- 
tutions throughout  the  world.  It  has  made  it  easy  for 
many  states  to  establish  true  republics  without  the 
necessity  of  extreme  revolution.  The  sovereign  has 
found  it  easier  to  yield  because  in  form  he  retains  so 
much.  In  the  march  of  the  world  towards  democracy, 
the  responsible  ministry  and  the  resulting  position  of 
the  sovereign  is  probably  a  contribution  of  greater 
practical  value  than  all  else  England  has  done,  save 
perhaps  the  idea  of  the  limited  monarchy  itself  and  the 


CONSTITUTIONAL  HISTORY  11 

impressive  lessons  and  examples  that  are  so  numerous 
throughout  her  history. 

These  paragraphs  sketch  in  the  barest  outline  the 
history  which  we  are  to  follow  in  more  detail.  It  is 
impossible  in  any  outline  sketch  to  present  all  of  even 
the  important  details  of  the  history  of  English  consti- 
tutional growth.  I  can  hope  in  this  essay,  however,  to 
give  some  definite  idea  of  its  beginning  and  of  the  great 
epochs  which  shaped  its  growth  and  to  indicate  in  the 
most  essential  particulars  how  it  came  to  be  what  it  is, 
and  to  suggest  incidentally  the  bearing  of  the  different 
stages  of  its  development  upon  modern  constitutions. 


CHAPTER  I 
TO  THE  GREAT  CHARTER 

The  word  "constitution"  when  applied  to  a  state  has 
in  ordinary  usage  two  distinct  meanings.  In  one  we 
include  in  our  idea  all  the  institutions  of  the  state 
general  and  local,  all  the  organs  of  government.  The 
constitution  of  a  state  in  this  sense  is  the  entire  bodily 
organization  through  which  it  performs  its  functions 
as  a  state.  In  the  other  meaning  we  refer  to  the  central, 
or  national  government  only,  and  in  actual  usage,  for 
about  a  hundred  years,  we  have  meant  by  the  term  a 
national  government  of  a  liberal,  usually  of  an  English 
type.  It  is  in  this  sense  that  we  may  say  of  a  people 
that  they  demanded  a  constitution,  or  that  a  constitution 
was  granted  them  or  adopted  by  them,  or  that  they  have 
or  do  not  have  constitutional  government.  It  is  in  this 
sense  that  I  shall  use  the  word  in  this  book,  in  the  sense 
of  the  central  or  national  government  only. 

If  we  use  the  term  in  its  broader  sense,  including 
every  phase  of  public  or  community  action,  then  the 
English  constitution  like  the  English  nation  and  the 
English  language  is  a  composite  product.  The  two  chief 


CONSTITUTIONAL  HISTORY  13 

elements  which  united  to  form  the  language  are  also  the 
two  chief  elements  which  united  to  form  the  constitution, 
Saxon  and  Norman  French.  The  invading  tribes  of 
Saxons  and  Angles  who  crossed  over  from  the  coasts  of 
Northern  Germany  in  the  fifth  century  to  occupy  the 
abandoned  province  of  Britain  found  there  a  population, 
mostly  Celtic  in  blood,  which  had  been  to  a  considerable 
extent  Romanized  during  three  centuries  of  Roman 
occupation.  Opinion  inclines  rather  strongly  at  present 
to  the  belief  that  a  large  amount  of  Celtic  blood  was 
absorbed  into  the  future  race,  even  in  those  parts  of 
England  which  remained  in  appearance  the  most  Teu- 
tonic. However  this  may  be,  no  amalgamation  took 
place  either  in  language  or  in  political  institutions.  In 
the  end  the  language  became  half  Latin  and  borrowed 
many  Celtic  roots,  and  strong  Roman  influences  modified 
and  enlarged  law  and  institutions  in  ways  that  are  still 
apparent,  but  in  neither  case  did  this  take  place  during 
the  age  of  German  conquest  and  settlement. 

We  have  in  this  book  to  do  with  the  character  and 
constitution  of  government,  and  with  regard  to  it  the 
body  of  original  material,  law  codes,  formal  legal  docu- 
ments, and  chronicle  writings,  from  which  opinion  must 
be  formed,  is  happily  so  large  that  the  facts  in  regard  to 
non-Teutonic  influence  are  not  open  to  question.  In 
some  minor  matters  the  influence  of  the  church  brought 
over  from  Roman  usage  things  which  the  Saxons  lacked, 


14  OUTLINE  SKETCH  OF  ENGLISH 

the  charter  as  judicial  record  or  land  conveyance  and 
wills,  but  these  did  not  affect  methods  of  government 
nor  the  content  of  the  law.  The  written  will  was  bor- 
rowed from  the  Romans,  but  not  the  law  of  inheritance. 
The  law  which  grew  up  and  the  constitutions  which  were 
formed  during  the  more  than  five  centuries  of  the  Saxon 
period  were  purely  Teutonic,  modified  only  by  natural 
development  during  so  long  a  time. 

The  German  conquerors  of  Britain  were  not  at  the 
time  of  their  invasion  in  an  advanced  stage  of  political 
development.  At  home  they  were  divided  into  little 
"county"  states,  without  common  organization,  having 
no  kings  and  no  national  or  tribal  government.  The 
shock  of  the  conquest,  the  necessity  of  constant  defence 
and  even  of  constant  conquest  from  the  Celts  or  from 
their  German  neighbors,  if  they  were  to  survive,  forced 
upon  the  colonies  established  in  Britain  the  creation  of 
the  office  of  king  and  the  formation  of  more  compact 
governments.  From  this  beginning  a  period  of  slow  but 
steady  growth  and  of  improvement  in  the  institutions 
both  of  general  and  local  government  extends  to  the 
Norman  Conquest  in  1066,  characterized  by  an  increase 
of  royal  power  and  to  some  extent  of  centralization.  The 
development  of  the  general  constitution  of  the  Saxon 
state,  however,  had  not  kept  pace  with  the  similar  change 
which  had  taken  place  in  the  contemporary  Frankish 
state  upon  the  continent.  It  is  this  comparative  back- 


CONSTITUTIONAL  HISTORY  15 

wardness  of  the  Saxon  constitution  which  accounts  for 
the  natural  and  unnoticed  substitution  of  the  Frankish 
for  it  when  the  Norman  Conquest  occurred.  That  the 
substitution  was  unnoticed  implies  that  the  lines  of 
development  in  the  two  states  had  been  closely  parallel, 
and  that  the  Saxon  was  only  a  somewhat  earlier  phase 
of  the  Frankish. 

The  fragmentary  character  of  the  evidence  from  which 
we  must  learn  the  constitutional  history  of  the  Saxon 
state  makes  it  impossible  with  any  certainty  to  date  the 
beginning  or  describe  the  early  forms  and  early  changes 
of  even  the  most  important  institutions.  For  the  pur- 
poses of  an  outline  sketch,  it  is  not  desirable  to  express 
opinions  upon  questions  in  regard  to  which  the  most 
authoritative  scholars  are  in  doubt,  and  the  field  of 
permanent  Saxon  influence,  local  law  and  local  insti- 
tutions, lying  outside  our  survey,  falls  almost  necessarily 
out  of  sight. 

If  then  we  leave  the  local  government  out  of  our 
account  and  restrict  the  word  constitution  to  the  nar- 
rower meaning  of  the  national  government,  then  we 
must  say  that,  so  far  as  the  elements  are  concerned 
which  grew  to  form  any  part  of  the  final  structure,  the 
origin  is  Norman  and  not  Saxon.  But  this  must  be 
understood  to  mean  the  very  remote  beginning  merely. 
The  essential  and  distinctive  features  of  the  English 
constitution,  those  which  have  given  it  its  place  in  the 


16  OUTLINE  SKETCH  OF  ENGLISH 

world  of  today  and  which  constitute  its  great  contri- 
bution to  civil  liberty,  do  not  appear  in  its  beginning 
but  were  all  the  products  of  later  English  history,  of 
the  development  which  took  place  on  English  soil. 
They  are  due  not  to  Saxon  nor  to  Norman,  but  to 
English  endeavor  only. 

In  historical  fact,  the  beginning  was  of  quite  a  differ- 
ent type  from  the  later  constitution,  for  the  government 
which  was  set  up  in  England  by  the  Norman  duke, 
William  the  Conqueror,  as  a  result  of  his  conquest  of 
the  country  in  1066,  was  for  that  day  a  highly  cen- 
tralized absolute  government.  The  king  was  all  power- 
ful even  as  compared  with  the  powerful  Norman 
baronage  which  settled  in  England  with  him.  The  king 
and  these  barons  together  constituted  all  government 
above  the  merely  local,  and  we  must  not  imagine  the 
existence  in  the  eleventh  century  of  anything  that  we 
should  now  understand  by  the  term  "the  people,"  nor 
indeed  of  the  existence  of  a  nation  in  our  sense  of  the 
word.  As  factors  in  the  public  life  of  the  state,  people 
and  nation  were  still  in  the  distant  future.  The  com- 
munity was  one  of  classes,  though  not  of  strict  caste, 
and  only  the  upper  classes,  barons  and  clergy  who  them- 
selves were  virtually  barons,  had  any  influence  upon  the 
general  government. 

These  two  features  of  the  public  life  of  England  after 
the  Conquest  constitute  from  our  present  point  of  view 


CONSTITUTIONAL  HISTORY  17 

the  chief  changes  which  resulted  from  that  event,  the 
introduction  of  absolute  monarchy  and  of  the  feudal 
baronage.  The  Saxon  state  which  was  overthrown  by 
the  Normans  had  been  making  for  some  centuries  slow 
progress  towards  both  these  results.  The  king  had  been 
growing  stronger,  the  country  more  united,  and  the 
machinery  for  the  government  of  all  parts  of  it  from 
the  center  had  been  steadily  improving.  Kings  like 
Cnut  and,  potentially  at  least,  Edward  the  Confessor 
were  powerful  rulers.  But  with  all  the  progress  it  had 
made  the  Saxon  was  still  some  generations  behind  the 
stage  which  had  been  reached  by  the  Norman  develop- 
ment. It  was  the  necessary  result  of  this  comparative 
backwardness  that  in  the  change  which  took  place  the 
monarchy  which  the  Norman  dukes  had  established  at 
home,  not  a  monarchy  in  name  but  in  all  except  name, 
was  transferred  to  England  bodily  and  put  in  place  of 
the  Saxon  monarchy  which  disappeared.  It  might  be 
perhaps  more  accurate  to  say  that  there  was  put  in 
place  of  the  Saxon  monarchy  another  of  the  same  type 
but  in  a  more  advanced  stage  of  development.  But  in 
either  case  we  are  compelled  to  say  that  it  was  the 
Norman  conception  of  the  office  and  practical  operation 
of  the  kingship,  not  the  Saxon,  which  became  funda- 
mental in  the  English  constitution. 

So  also  in  case  of  the  feudal  baronage.     During  the 
Saxon  centuries  great  progress  had  been  made  towards 


18  OUTLINE  SKETCH  OF  ENGLISH 

those  elements  of  the  later  feudal  system  which  were 
economic  in  character.  The  economic  conditions  which 
had  favored  and  even  induced  the  growth  of  these 
institutions  through  a  great  part  of  the  Roman  Empire 
existed  in  England  also  and  had  there  produced  similar 
results.  Protection  of  weaker  men  and  of  smaller  land- 
holdings  by  the  more  powerful  landlords,  some  features 
of  dependent  tenure  and  of  private  jurisdiction,  even 
the  passage  of  local  public  courts  into  private  possession, 
were  to  be  seen  before  the  Norman  Conquest.  But  those 
-  political  elements  of  the  feudal  system  which  had 
resulted  from  the  transformation  of  the  duties  which 
the  subject  owed  the  state,  military  service,  judicial 
obligation,  allegiance  even,  into  private  duties  to  an 
overlord,  those  elements  which  constitute  the  essential 
character  of  the  feudal  baronage  in  the  great  political 
role  which  it  played  in  the  medieval  history  of  Western 
Europe,  had  no  existence  in  England  before  1066.  Nor 
did  that  which  resulted  from  the  growth  of  political 
feudalism,  the  feudal  organization  of  all  public  life,  the 
feudal  air  and  atmosphere  which  embraced  everything, 
the  feudalization  of  the  state  machinery  and  the  position 
of  the  baron,  because  he  was  a  baron,  as  the  operative 
unit  in  that  machinery. 

This  kind  of  feudalism  was  introduced  into  England 
by  the  Normans,  and  the  government  which  they  set  up 
was  marked  by  these  two  somewhat  opposed  character- 


CONSTITUTIONAL  HISTORY  19 

istics,  an  absolute  and  centralized  general  government 
on  one  side  and  on  the  other  a  powerful  baronage. 
These  two  elements  of  the  feudal  state  were  closely 
bound  together  as  well  as  opposed,  for  it  was  the 
baronage  through  whom  the  general  government  must 
be  administered,  out  of  whom  even  the  organs  of  cen- 
tralization had  to  be  formed;  but  also  the  barons'  per- 
sonal interests  were  all  bound  up  with  the  local  instead 
of  the  general,  and  he  might  at  any  moment  yield  to  the 
constant  temptation  of  feudalism  to  emphasize  and 
enlarge  his  local  independence  at  the  expense  of  the 
state.  For  two  centuries  after  the  Conquest  there  was 
a  constantly  recurring  rivalry  and  conflict  between 
these  opposing  tendencies,  the  centralizing  tendency  of 
the  monarchy  and  the  dividing  and  limiting  tendency 
of  the  baronage. 

As  yet  the  powerful  Norman  monarchy  was  practical 
rather  than  constitutional.  It  was  not  absolute  because 
law  and  institutions  made  it  so,  for  they  did  not,  but 
because  in  military  and  financial  resources  it  was 
stronger  than  the  baronage  and  because  tradition  and 
prestige  and  a  kind  of  general  support  sustained  its 
power.  The  problem  of  immediate  constitutional  growth 
in  the  following  age  was  the  question  whether  this 
practical  absolutism  could  be  transformed  into  the  con- 
stitution of  the  state  and  securely  embodied  in  law  and 
institutions  or  whether  the  limiting  and,  one  must  say 


20  OUTLINE  SKETCH  OF  ENGLISH 

from  the  point  of  view  of  government  in  the  twelfth 

century,  the  crippling  tendency  of  feudalism  should  be 

the  one  to  obtain  permanent  expression  in  the  English 

constitution. 

As  yet  neither  king  nor  baronage  had  any  wide  out- 
look on  the  future  nor  any  clear  conception  of  constitu- 
tional progress  or  specific  rights.  The  king  had  more 
regard  for  the  present  exercise  of  power  than,  for  laying 
the  foundations  of  its  future  permanence.  The  indi- 
vidual baron  was  not  prone  to  regard  his  share  in 
public  affairs  as  privilege  or  opportunity  for  the  exercise 
of  influence  on  the  conduct  of  government,  but  rather 
as  a  burden.  He  had  entered  into  certain  obligations 
of  public  service,  in  the  army,  in  the  central  council 
which  was  at  the  same  time  legislature  and  court,  and 
of  money  payments  on  certain  infrequent  occasions,  all 
in  return  for  the  land  which  had  been  granted  to  him. 
These  obligations  seemed  to  be  personal  between  himself 
and  the  king.  He  received  his  lands  from  the  king. 
He  promised  the  king  to  render  these  services  in  return 
when  he  should  be  called  upon  to  do  so.  If  he  was  not 
called  upon  in  any  particular  case,  he  might  congratulate 
himself  on  escaping  a  part  of  his  burden.  The  relation- 
ship between  king  and  man  was  merely  a  contract  which, 
though  not  often  stated  in  definite  legal  terms,  was 
nevertheless  definitely  understood  and  regulated  by 
custom.  Under  such  a  contract,  a  business  quite  as 


CONSTITUTIONAL  HISTORY  21 

much  as  a  political  arrangement,  being  really  a  process 
of  getting  government  carried  on  by  renting  land,  these 
services  of  the  barons  taken  together  furnished  the  state 
with  its  military,  legislative  and  judicial  machinery,  and 
with  a  small  part  of  its  revenue.  The  working  classes, 
agricultural  and  commercial,  might  be  occasionally 
called  upon  to  pay,  but  there  was  no  place  for  them  as 
classes  in  the  national  government. 

In  such  a  community  ideals  of  public  service  were  not 
high,  and  the  individual  would  naturally  escape  gladly 
with  as  little  share  in  public  affairs  as  possible.  Nearly 
everything  was  left  to  the  determination  of  the  king. 
The  state  machinery,  the  state  itself,  was  his  private 
property.  If  order  and  security  were  maintained 
throughout  the  land,  the  government  was  good,  the  king 
was  a  good  king.  No  one  demanded  anything  more  and 
the  king,  fulfilling  this  duty,  might  look  upon  the 
kingdom  as  his  own,  as  the  baron  did  upon  his  manor. 

Such  was  the  exceedingly  simple  constitution  of  the 
feudal  .state.  For  carrying  on  the  ordinary  operations 
of  government,  for  conducting  the  public  business  of  the 
country  and  looking  after  all  the  relations  between  the 
individual  and  the  state,  there  were  in  reality  but  two 
regular  and  permanent  institutions.  One  of  these 
emphasized  decidedly  the  local  side  of  things  and  was 
the  organ  through  which  the  central  government  exer- 
cised its  functions  and  secured  its  rights  in  the  terri- 


22  OUTLINE  SKETCH  OF  ENGLISH 

tonal  subdivisions  of  the  state,  the. sh.griff.  The  other 
was  especially  concerned  with  the  central  government, 
indeed  we  may  almost  say  that  it  was  in  itself  alone  the 
central  government,  for  it  was  through  this  institution 
that  chiefly,  though  not  in  absolutely  every  case,  the 
king's  prerogatives  were  exercised.  This  was  the  central 
or  national  assembly,  occasionally  meeting  and  called 
often  the  great  Council,  together  with  its  smaller  and 
more  permanent  form  called  simply  Council.  To  either 
form  the  name  curia,  or  curia  regis,  was  occasionally 
applied. 

We  do  not  know  just  how,  nor  at  what  point  in  Anglo- 
Saxon  history,  the  office  of  sheriff  originated.  It  may 
very  possibly  have  begun  as  an  economic  office  only,  a 
kind  of  stewardship  of  the  royal  domains  in  the  local 
divisions  of  the  state,  as  the  name  "shire-reeve,"  steward 
of  the  shire,  implies.  Afterwards  by  degrees,  with  the 
increasing  power  of  the  king,  it  may  have  been  made  to 
represent  him  for  local  purposes  in  more  and  more  of 
the  functions  of  government.  That  is  what  tha  sheriff 
was  at  any  rate  at  the  date  of  the  Norman  Conquest: 
the  representative  of  the  king  in  executive  and  adminis- 
trative, judicial  and  military  matters,  and  in  all  his 
financial  interests,  in  the  shires  into  which  the  state  was 
divided.  Such  an  office  hardly  seems  to  us  to  constitute 
a  sufficent  bond  of  centralization,  but  it  was  effective  in 
the  state  of  those  days,  and  the  Normans  had  nothing 


CONSTITUTIONAL  HISTORY  23 

better  of  their  own  to  put  in  its  place.  They  had  an 
office  of  their  own  in  fact  almost  identical  in  character 
which  had  been  developed  in  the  Frankish  kingdom  and 
which  they  called  "vice-comes,"  vice  count  or  viscount, 
because  the  chief  executive  which  this  office  represented 
locally  in  their  country  was  the  count.  The  duke  of 
Normandy,  as  he  came  to  be  called  in  the  next  genera- 
tion, was  count  under  the  king  of  the  Franks,  the  count 
of  Normandy,  an  office  in  the  Frankish  kingdom  not 
very  unlike  that  of  sheriff,  and  the  viscount  was  his 
deputy  in  the  local  subdivisions  of  Normandy.  It  was 
therefore  easy  for  the  Normans  to  continue  the  English 
sheriff  in  his  office  and  functions  as  they  found  him  at 
the  Conquest.  In  fact  the  stronger  kingship  which  they 
established  increased  the  importance  and  power  of  the 
sheriff,  and  the  century  which  followed  1066  was  the 
great  age  in  the  history  of  that  office,  which  began  to 
decline  when  more  effective  means  of  centralization  were 
brought  into  use.  In  language  the  Saxon  term  "sheriff" 
survived  in  popular  use,  while  the  Norman  word 
"county"  took  its  place  beside  the  Saxon  "shire." 

The  Anglo-Norman  central  Council  was  an  institution 
of  quite  a  different  type,  and  yet  it  shows  even  more 
clearly  perhaps  the  undifferentiated  character  of  the 
government.  In  form  and  appearance,  and  in  the  main 
in  the  functions  it  performed,  it  seemed,  as  clearly  as 
in  the  case  of  the  sheriff,  identical  with  the  Saxon 


24  OUTLINE  SKETCH  OF  ENGLISH 

national  assembly  which  had  preceded  it.  It  was  like  that 
an  assembly  of  the  great  men  of  church  and  state,  of  the 
household  officers  of  the  king,  and  in  exceptional  cases 
of  any  whom  he  might  wish  to  summon.  But  in  reality 
the  Norman  Conquest  had  introduced  into  the  assembly 
a  new  controlling  principle  of  composition  which  makes 
a  decided  institutional  change  and  compels  us  to  find  its 
true  ancestor  in  the  Frankish,  not  in  the  Saxon  state. 
That  new  principle  of  composition  was  feudal.  The  great 
Council  was  feudalized,  not  in  function  but  in  structure. 
The  great  men  of  church  and  state  in  attending  it  per- 
formed a  duty  which  they  owed  no  longer  to  the  state, 
nor  to  the  king  as  sovereign,  but  to  the  king  personally 
as  the  lord  of  vassals,  just  as  their  own  vassals  attended 
their  exactly  similar  councils.  The  rare  exceptions 
which  we  find  in  individual  cases  to  this  feudal  principle 
in  the  membership  of  a  given  assembly  were  survivals 
not  of  an  earlier  characteristic  of  the  assembly  but  of 
an  earlier  function  of  the  king  and  a  sign  of  his  preroga- 
tive power  in  the  government  of  the  state.  The  same 
institution  in  both  the  essential  and  the  exceptional 
characteristics,  with  of  course  occasional  local  peculiari- 
ties, is  to  be  found  in  all  the  contemporary  feudal  states 
which  formed  within  the  Frankish  empire,  and  to  deny 
the  feudal  character  of  the  Anglo-Norman  great  Council 
because  of  its  similarity  in  superficial  appearance  and 
function  to  the  Saxon  assembly  would  be  to  deny  the 


CONSTITUTIONAL  HISTORY  25 

feudal  character  of  every  institution  of  the  kind  in 
Europe  and  the  Latin  Orient. 

Before  trying  to  get  an  idea  of  the  part  which  this 
institution  played  in  government,  it  is  necessary  to 
understand  as  clearly  as  possible  the  difficult  fact  that, 
to  the  men  who  were  acting  in  it,  its  two  forms,  the  great 
and  the  small  Councils,  were  identical  in  everything 
except  size.  The  small  Council  was  the  active  body  in 
the  intervals  between  the  meetings  of  the  great  Council, 
but  it  was  not  a  committee  which  the  larger  body  had 
clothed  with  certain  of  its  functions  to  be  performed 
under  responsibility  to  itself.  It  is  very  natural  for  us 
to  think  of  it  as  a  committee,  but  no  one  at  the  time  had 
such  an  idea  of  it.  It  was  the  larger  body  shrunk  to  the 
smaller  dimensions  determined  by  those  who  were  imme- 
diately connected  with  the  government  or  attendant, 
perhaps  accidentally  even,  on  the  king.  But  size  had 
nothing  to  do  with  function,  and  in  the  business  of  the 
state  the  small  Council  could  do  all  that  the  great 
Council  could  do.  In  fact  the  steady  and  permanent 
institution  by  which  day  by  day  the  business  of  the 
Anglo-Norman  state  was  operated  and  supervised  was 
the  small  Council.  The  unity  of  this  institution  in  its 
two  forms  is  somewhat  difficult  for  our  more  analytical 
minds  to  grasp  clearly,  and  yet  the  fact  is  exceptionally 
important  because  this  undifferentiated  institution,  in 
which  most  functions  of  that  primitive  government  were 


26  OUTLINE  SKETCH  OF  ENGLISH 

centered,  became  in  time  through  each  of  its  forms  the 

mother  of  a  numerous  progeny  of  institutions  existing 

in  the  modern  state.     The  fact  that  all  functions  and 

\  powers  of  the  central  body  belonged  alike  to  each  of  the 

I   forms  in  which  it  acted  reveals  itself  also  in  the  later 

'    history  in  a  tangle  of  crisscross  institutions  and  opera- 

i    tions  which  is  most  puzzling  and  misleading  unless  the 

original  identity  is  clearly  held  in  mind. 

As  the  chief  machinery  of  actual  government  and  a 
part  of  the  constitution,  the  essential  fact  regarding  the 
Council  is  that  it  exercised  or  supervised  the  exercise  of 
all  the  functions  of  the  state  without  making  any 
institutional  distinction  between  them.  It  was  the 
supreme  legislature  on  those  infrequent  occasions  when 
the  slight  business  of  the  community  demanded  new 
legislation  or  the  modification  of  existing  law.  It  was 
the  highest  court  of  law  in  which  the  most  important 
cases,  or  the  cases  of  the  most  important  persons,  were 
tried  and  decided,  it  might  be  in  the  same  session  and 
by  the  same  assembly  which  perhaps  immediately  before 
had  changed  the  law  of  the  land.  It  was  in  supreme 
control  of  the  executive  and  administrative  activities  of 
the  state.  To  it  all  executive  and  administrative  officers, 
high  or  low,  were  responsible  and,  when  we  attempt  to 
collect  instances  of  the  legislative  action  of  the  Council 
in  this  early  period,  we  find  that  a  large  proportion  of 


CONSTITUTIONAL  HISTORY  27 

them  were  in  reality  in  the  form  of  administrative  order's 
or  changes  made  in  administrative  practices. 

It  was  upon  this  side  of  the  Council's  activity  that 
the  first  step  was  taken  towards  differentiation  in  this 
early  period  or,  as  we  may  say,  the  first  step  towards  fo-y 

the  machinery  of  the  modern  constitution.    The  financial  107  &* 

i  §*+* 

business  of  the  state  began,  at  some  unknown  time,  to 

be  set  apart  from  the  other  business  of  the  Council  and 
to  be  carried  on  in  sessions  specially  devoted  to  the 
purpose.  It  was  the  business  of  the  Council,  since  it 
was  the  central  organ  of  the  government,  not  merely  to 
get  in  the  revenue  of  the  state  in  cash  and  to  open  con- 
tinuing accounts  by  which  to  check  the  financial  activi- 
ties of  the  sheriffs  in  their  respective  counties,  but  also 
to  supervise  indirectly  all  the  activities  of  the  sheriff 
in  administrative  and  executive  work.  Undoubtedly 
where  the  particular  matter  was  one  affecting  the  whole 
country,  like  a  general  feudal  levy  or  like  the  complaints 
against  the  sheriff  coming  up  from  all  England  about 
1170,  the  great  Council  instead  of  the  small  would  act 
in  the  case,  but  always  so  far  as  we  know  and  probably 
from  the  beginning,  it  was  the  small  Council  which 
supervised  the  collection  of  the  revenue. 

This  financial  business  being  quite  specific  in  character   » 
could  easily  and  first  of  all  lines  of  business  be  set  off  by 
itself  and  considered  in  sessions  specially  devoted  to  the 
purpose.  The  Council  meeting  in  such  sessions  was  known 


28  OUTLINE  SKETCH  OF  ENGLISH 

as  the  Exchequer  and,  in  what  was  probably  a  second 
stage  of  its  history,  it  came  to  be  considered  that  a  special 
responsibility  for  attendance  and  action  rested  upon  the 
official  members  of  the  Council  whose  offices  had  to  do 
with  finances.  This  stage  was  reached  at  least  as  early 
as  the  reign  of  Henry  I,  soon  after  the  beginning  of  the 
twelfth  century.  By  slow  degrees  the  Exchequer  came 
to  be  more  and  more  highly  specialized  and  limited  to 
its  one  field  of  work,  but  traces  long  remain  visible  to 
us  of  the  fact  that  it  had  once  been  the  small  Council 
and  capable  of  acting  in  an  Exchequer  session  upon  any 
of  the  business  which  the  small  Council  had  to  do. 

The  development  of  the  Exchequer  was  the  most 
important  purely  institutional  change  in  the  first  cen- 
tury after  the  Conquest,  but  in  the  meantime  two 
changes  had  been  taking  place  so  gradually  as  not  to 
have  been  clearly  perceived  at  the  time,  but  leading  to 
constitutional  results  which  were  permanent.  One  was 
the  increase  in  the  practical  power  of  the  king,  the  other 
was  the  growth  of  the  church  in  practical  independence 
within  the  state.  In  both  the  cases  I  use  the  word 
' '  practical ' '  to  mean  that  these  changes  were  not  yet,  or 
only  in  small  part,  embodied  in  law  and  constitutional 
form. 

Monarchy  and  baronage  stood  over  against  one  an- 
other after  the  Conquest  as  the  two  most  powerful 
forces  of  the  time,  and  the  king  was  the  stronger  of  the 


CONSTITUTIONAL  HISTORY  29 

two.  It  was  not,  as  has  been  said,  the  constitution  which 
made  him  strong.  He  was  the  strongest  power  in  the 
state  because  he  possessed  more  of  the  practical  elements 
of  strength,  the  greatest  military  power,  the  largest 
financial  resources,  and  the  highest  prestige,  and  because 
the  law  and  custom  of  the  time  allowed  him  certain 
decided  advantages  over  anyone  else.  And  yet  there 
was  something  more  that  went  to  make  his  position  than 
these  things.  Even  on  the  continent  where  feudal  dis- 
integration had  reached  its  extreme  limit,  that  age  had 
kept  a  conception  of  the  office  of  king  which  we  can 
hardly  call  a  theory  or  ideal  of  kingship,  it  was  held  with 
so  little  general  consciousness,  but  which  was  so  far  as 
it  went  definite  enough.  The  king  was  among  men  a 
representative  of  the  divine  government.  The  supreme 
objects  of  his  rule  should  be  those  which  the  divine 
government  seeks.  His  great  duty  was  to  make  peace V' 
and  justice  prevail,  to  secure  for  his  subjects  the  un-  I 
disturbed  enjoyment  of  their  rights.  The  idea  was  i 
derived  largely  from  the  Old  Testament,  with  some  \ 
traditions  of  the  Roman  monarchy  through  Charlemagne, 
and  some  little  speculative  influence  from  the  scanty 
literature  inherited  from  the  ancient  world.  It  was  no 
full-blown  theory  of  government  and  probably  it  was 
little  in  the  minds  of  baron  or  burgher  except  on  special 
occasions.  Men  did  in  those  days  very  little  abstract 
thinking  about  their  government  and  made  no  effort  to 


30  OUTLINE  SKETCH  OF  ENGLISH 

shape  it  according  to  any  definite  plan.  But  the  idea 
of  the  king's  duties  in  the  state  was  accepted  generally 
enough  to  make  the  king  in  practice  something  more 
than  a  mere  lord  of  vassals,  and  to  give  him  strong 
foundations  on  which  to  build  a  centralized  and  anti- 
feudal  power.  That  there  was  any  building  with  plan 
and  intention  towards  such  an  end  during  the  first 
century  after  the  Conquest,  we  cannot  confidently  say, 
but  there  was  some  growth  in  that  practical  power  which 
has  been  described  above. 

William  the  Conqueror's  son,  William  Rufus,  the 
second  king  of  the  Norman  family,  exercised  his  power 
with  such  harshness,  or  took  such  extreme  advantage  of 
his  opportunities  to  increase  it,  as  to  excite  the  hostility, 
at  least  of  those  who  wrote  the  books,  and  twice  there 
were  baronial  rebellions  against  him  without  success. 
He  was  too  strong  to  be  opposed.  His  reign  lasted  but 
little  more  than  ten  years,  but  in  that  time,  just  how 
we  do  not  know,  he  was  believed  by  his  own  generation 
to  have  pushed  the  feudal  rights  of  the  king  to  illegal 
extreme  at  the  expense  of  his  vassals.  His  sudden  death 
gave  the  barons  an  opportunity  of  which  they  took 
instant  advantage.  His  brother  Henry  needed  their 
support  to  secure  the  throne  and  as  their  price  they 
demanded  formal  promises  of  him  that  in  the  legal 
relations  between  king  and  baronage  there  should  be  a 
return  to  the  days  of  William  I.  In  making  this  demand 


CONSTITUTIONAL  HISTORY  31 

and  putting  the  king's  answer  into  written  form  in 
Henry's  so-called  coronation  charter,  the  barons  fell 
back  in  principle  upon  the  fundamental  fact  of  feudal- 
ism already  mentioned,  the  contract  which  created  the 
relation  between  lord  and  vassal.  The  charter,  which 
consisted  of  definite  promises  on  the  part  of  the  king 
as  to  the  character  of  his  government,  implied  an 
equally  definite  engagement  on  the  part  of  the  barons 
to  support  him  as  king,  and  was  a  specific  contract 
within  the  more  general  and  unexpressed  contract  which 
created  the  feudal  relationship. 

In  the  feudal  system  both  as  a  practical  way  of  getting  % 
certain  things  done  and  as  a  body  of  law,  the  controlling 
idea  was  that  of  contract.    It  was  by  a  contract  that  the  | 
relationship  between  lord  and  vassal  was  created,  and 
it  was  within  the  limits  of  that  contract  and  as  deter- 
mined by  it  that  the  feudal  system,   as  a  system  of 
government,  was  operated.    The  sovereign  of  the  feudal 
state  in  getting  his  army,  or  legislature,  or  court,  or  in 
collecting  such  money  payments  as  the  feudal  relation 
provided  for,  had  no  legal  right  to  exact  more  service  or   I 
larger  sums  than   the  contract  between   him   and   his  / 
vassals  allowed  as  fixed  and  interpreted  by  custom.    On 
the  other  side  also  the  king  assumed  in  this  contract 
certain  obligations  towards  his  vassal,  in  some  directions 
definitely  understood,  with  reference,  for  example,  to 
the  right  of  the  vassal  to  be  tried  by  his  peers,  and  in 


32  OUTLINE  SKETCH  OF  ENGLISH 

other  directions  more  or  less  vague,  but  comprised  in 
the  ideas  of  justice  towards  the  vassal  and  protection 
of  him  in  his  rights.  It  was  upon  this  conception  of  the 
obligations  by  which  the  king  was  bound  that  the  barons 
acted  in  securing  the  charter  from  Henry  as  a  cheek  on 
the  increasing  royal  power. 

Here  again  it  is  not  likely  that  lord  or  vassal  had  this 
idea  of  a  ruling  contract  constantly  in  mind,  but  it  was 
held  clearly  enough  to  act  as  a  decided  check  on  the 
development  of  an  absolute  monarchy,  when  the  appre- 
hension of  the  powerful  Anglo-Norman  baronage  was 
excited,  and  to  become  ultimately  the  first  stepping  stone 
towards  the  constitutional  or  limited  monarchy.  In  the 
coronation  charter  of  Henry  I  there  is  no  explicit  refer- 
ence to  contract,  as  there  is  none  in  the  ordinary  codes 
of  feudal  law,  or  in  the  more  extended  and  specific 
charter  of  King  John  which  we  call  Magn&  Carta.  But 
the  coronation  charter  sets  forth  in  its  first  clause  as  the 
reason  of  its  existence  the  oppression  of  the  kingdom  by 
unjust  exactions  and  unjust  customs — exactions  and 
customs,  that  is,  which  had  no  right  to  be.  Clearly  it 
was  possible  to  distinguish  between  the  things  to  which 
the  king  had  a  right  and  those  to  which  he  had  no  right, 
and  the  king  as  clearly  admitted  that  unjust  exactions 
and  customs  ought  to  be  abandoned. 

But  the  coronation  charter  of  Henry  I  was  only  a 
momentary  check  in  the  growth  of  a  stronger  royal 


CONSTITUTIONAL  HISTORY  33 

power.  In  the  end  it  did  no  more  than  make  a  record  \ 
for  future  use  of  the  fact  that  in  the  method  of  the 
charter  and  in  the  principle  of  contract  on  which  it 
rested  there  was  a  way  provided  to  curb  the  king  and 
set  limitations  to  his  absolutism.  Henry  I  proved  to  be 
an  even  stronger  king  than  his  brother  William  had 
been  and  before  long  he  reverted  to  the  practices  which 
in  the  charter  he  had  promised  to  abandon.  Those 
particular  exactions  to  which,  we  judge  from  the  charter, 
the  barons  objected  most  bitterly,  like  the  extreme 
exercise  of  the  rights  of  wardship  and  marriage,  became 
permanent  rights  of  the  crown,  and  in  the  days  of  his 
grandson  were  a  recognized  part  of  English  feudal  law. 
In  the  days  of  that  grandson,  King  Henry  II,  the 
absolute  monarchy  which  was  forming  made  an  advance 
more  rapid  and  more  decisive  than  any  before  that  time, 
because  it  took  a  long  step  towards  embodying  the  royal 
absolutism  in  fixed  constitutional  form.  The  problem 
before  King  Henry  when  he  came  to  the  throne  in  1154 
was  the  perpetual  problem  of  the  middle  ages,  of  main- 
taining order  and  security  everywhere  throughout  the 
country  and  of  making  the  king's  justice,  his  power  to 
enforce  right  law,  feared  in  every  local  subdivision  of 
the  state.  It  was  the  problem  not  merely  of  holding  the 
people  of  the  country  to  the  law,  but  even  the  local 
officers  of  the  government  whom  the  opportunities  of 
distance  and  difficult  intercommunication  were  con- 


84  OUTLINE  SKETCH  OF  ENGLISH 

stantly  tempting  to  use  their  offices  for  their  personal 
advantage,  or  even  to  turn  them  into  personal  posses- 
sions annexed  to  their  local  territorial  lordships.  The 
king  could  not  be  everywhere  at  once,  and  yet  some  form 
of  direct  contact  between  the  central  and  the  local,  some 
immediate  fear  of  the  king's  hand  everywhere,  was  a 
vital  necessity. 

This  problem  was  solved  by  making  regular  and  per- 
manent a  practice  which  had  been  occasionally  used 
since  the  Conquest  and  which  had  been  inherited  by  the 
Normans  from  the  Frankish  monarchy.  From  the 
central  Council,  the  small  Council,  which  was,  as  we 
have  seen,  the  institution  supervising  the  executive  and 
administrative  work  of  the  government  and  at  the  same 
time  a  court  of  law  trying  cases,  a  commission  of  its 
members  was  sent  to  groups  of  counties  throughout  the 
kingdom  to  hold  in  each  county  of  the  circuit  before  the 
local  county  court  a  session,  not  of  the  county  court,  but 
of  the  central  curia  regis.  William  the  Conqueror  had 
made  use  of  this  practice  to  collect  in  each  county  the 
material  for  his  great  record  of  the  taxing  possibilities 
of  England,  the  Domesday  book,  and  even  in  his  reign 
it  was  frequently  used  for  the  local  trial  of  law  suits  by 
the  curia  regis.  Now  Henry  II  determined  that  the 
central  supervising  body  of  the  kingdom  should  be 
carried  by  this  expedient  into  every  county,  with  all  its 
powers  and  prerogatives,  to  hold  a  session  by  the  help 


CONSTITUTIONAL  HISTORY  35 

of  the  local  machinery  on  the  spot  where  local  evidence 
was  more  easily  got  and  protection  more  effectively 
offered  against  the  local  fear  of  the  powerful  offender. 
It  was  a  most  efficacious  plan  for  that  day  of  undiffer- 
entiated  institutions. 

At  the  same  time  great  improvements  were  made  in  the 
procedure  to  be  operated  by  these  new  courts  both  in 
criminal  and  civil  cases,  improvements  which  begin  an 
age  of  rapid  growth  in  the  history  of  our  judicial  insti- 
tutions. It  was  indeed  upon  these  institutions,  upon 
the  organization  of  our  courts,  upon  the  development 
of  the  jury  and  of  our  judicial  processes,  and  upon  the 
formation  of  the  common  law  and  the  system  of  equity, 
that  this  innovation  was  to  have  its  most  permanent 
effect.  But  to  men  in  that  age  another  effect  was  more 
noticeable  and  this  is  in  the  constitutional  history  of 
the  country  more  noteworthy.  This  new  institution 
added  to  the  constitution  of  the  Anglo-Norman  state,  to 
the  practical  machinery  of  government,  a  new  engine 
of  centralization,  far  more  immediate  and  effective  than 
any  which  existed  before.  The  controlling  central  power 
was  brought  by  it  into  direct  contact  with  every  free- 
holder in  the  land  through  its  use  of  the  county  court, 
and  thus  bound  together  all  parts  of  the  country  distant 
and  near  under  a  common  supervision.  The  king's  hand 
was  laid  upon  every  man.  It  was  the  first  step  and  a 


86  OUTLINE  SKETCH  OF  ENGLISH 

long   step   towards   embodying   the    practical   Norman 

absolutism  in  constitutional  forms. 

From  such  a  beginning  it  would  not  be  difficult  to  go 
on  to  add  to  a  royal  control  of  administration  vested  in 
fixed  forms,  an  equally  fixed  royal  legislative  right  and 
an  unchecked  control  over  the  new  processes  of  taxation 
which  were  soon  to  be  put  into  use.  It  was  a  first  step 
towards  a  rounded  constitution  embodying  in  fully 
developed  machinery  a  royal  control  of  all  the  functions 
of  the  state.  This  is  what  actually  occurred  in  France. 
The  singular  contrast  which  the  institutional  history  of 
these  two  countries  presents  was  long  ago  pointed  out. 
In  details  of  constitutional  life,  France  and  England  of 
these  early  centuries  were  practically  identical.  France 
was  also  a  feudal  state.  The  means  of  carrying  on  the 
government,  the  machinery  of  the  state,  were  furnished 
by  the  feudal  services  of  the  baron ;  the  operative  agent 
of  the  government  was  the  baron.  Feudal  law  was  the 
same,  the  feudal  practice  and  spirit  controlled  life 
equally  in  the  two  states.  In  both  states  the  same  vague 
ideas  as  to  the  royal  duty  of  justice  prevailed,  derived 
from  the  same  past  and  expressed  in  a  coronation  oath 
practically  identical.  And  yet  out  of  an  institutional 
situation  hardly  to  be  distinguished,  France  emerged  at 
the  close  of  the  middle  ages  an  absolute  and  England  a 
limited  monarchy.  A  hundred  and  fifty  years  ago  one 
of  the  first  foreign  writers  who  undertook  to  describe 


CONSTITUTIONAL  HISTORY  37 

the  English  constitution  for  the  benefit  of  other  peoples 
declared  that  the  explanation  of  this  peculiar  fact  is 
to  be  found  in  that  other  fact  that  England  began  its 
history  with  an  absolute  and  France  with  an  almost 
powerless  monarchy.  This  declaration  of  the  clever 
French  philosopher  is  much  more  than  a  striking  para- 
dox. It  may  have  been  in  his  case  a  brilliant  intuition, 
but  it  might  have  been  a  sober  generalization.  As  in  the 
course  of  English  history  other  elements  in  the  state 
arose  to  power  beside  the  king  and  slowly  won  their  way 
to  influence  upon  the  government,  what  they  gained  was 
taken  from  the  king  and  his  uncontrolled  action  by 
degrees  hemmed  in  and  limited.  In  France  step  by 
step  the  barons,  who  had  been  the  strongest  element  in 
the  feudal  state,  were  subjected  to  control  and  what 
they  lost  was  added  to  the  king,  by  whom  from  the 
beginning  it  had  been  in  theory  possessed. 

If  this  explanation  of  the  constitutional  history  of 
these  two  states  may  perhaps  be  thought  too  simple  for 
the  tangled  maze  of  facts  which  they  present,  there  still 
does  remain  this  constitutional  situation  clearly  con- 
trasted in  one  direction  at  the  beginning  and  in  the 
opposite  direction  at  the  end  of  their  medieval  history. 
For  the  Anglo-Norman  kingship,  if  not  an  ideal,  cer-  j 
tainly  was  a  practical  absolutism.  The  king  was  not 
merely  the  strongest  element  in  the  state  but  the 
constitution  furnished  no  means  by  which  a  will  in 


88  OUTLINE  SKETCH  OF  ENGLISH 

opposition  to  him  could  express  itself  except  by  dis- 
obedience and  rebellion,  the  feudal  last  resort.  But 
even  with  this  recognized  possibility  nothing  but  a 
combination  of  barons  against  the  king  could  hope  to  be 
successful,  and  no  combination  even  was  successful  for 
a  century  and  a  half.  In  the  days  when  feudalism  was 
at  its  height  the  right  of  the  baronage  to  resist  the  wrong- 
doing of  the  king  was  apt  to  be  looked  upon  as  an  indi- 
vidual right,  the  right  of  an  individual  only,  and  some 
beginning  of  corporate  consciousness,  some  recognition 
of  the  fact  that  the  rights  of  the  class  together  were 
threatened  by  royal  innovations,  was  necessary  before 
combined  action  of  constitutional  significance  was  pos- 
sible. But  that  came  slowly  everywhere,  and  nowhere 
in  the  Europe  of  that  date  outside  England  is  there 
to  be  found  so  strong  and  so  centralized  a  state  in  the 
first  years  of  the  thirteenth  century. 

But  it  was  apparently  not  from  the  centralizing 
aspect  of  Henry's  changes  that  the  impulse  came  which 
put  a  check  upon  this  development.  It  came  from  the 
conduct  of  a  king  who  ruled,  or  who  was  believed  by  his 
time  to  rule,  as  William  Rufus  had  done ;  it  was  because 
he  stretched  or  seemed  to  stretch  the  royal  rights  to 
illegal  limits  in  his  demands  of  money  and  of  services. 
These  at  least  are  the  reasons  which  Magna  Carta  seems 
to  give  us  why  the  barons  objected  to  the  changes 
of  Henry  II,  and  not  so  much  the  increased  centrali- 


CONSTITUTIONAL  HISTORY  39 

zation  resulting.  The  interference  of  his  judicial  pro- 
cesses with  the  jurisdiction  of  their  baronial  courts 
especially  excited  their  opposition  and  seemed  to  them 
an  illegal  usurpation,  rather  it  would  seem  because  it 
deprived  them  of  one  of  their  important  property  rights 
than  because  it  made  the  king  more  powerful. 

But  before  taking  up  the  Great  Charter,  which  re- 
sulted from  the  barons'  opposition  to  the  king,  it  is 
necessary  to  notice  the  other  practical  development 
referred  to  above  which  was  destined  in  the  end  to  have 
important  constitutional  consequences.  When  Henry  II 
began  his  reform,  he  found  that  the  most  serious  imme- 
diate obstacle  in  his  way  was  the  fact  that  his  clerical 
subjects,  persons  in  holy  orders,  were  not  within  the 
jurisdiction  of  his  courts.  This  had  not  always  been  the 
ease.  In  Saxon  days  cleric  and  layman  had  been  judged 
in  the  same  tribunals.  But  the  growing  ecclesiastical 
monarchy  of  Christendom,  a  real  state  with  all  the 
organization  and  machinery  of  a  state,  could  not  be 
satisfied  with  that  arrangement,  and  William  I,  who 
sympathized  with  the  purposes  of  the  great  reformation 
which  placed  Gregory  VII  on  the  papal  throne,  gave  to 
the  church  of  England  after  the  Conquest  its  independ- 
ent courts.  No  serious  consequences  from  this  step  were 
felt  at  once.  It  is  perhaps  true  at  a  time  when  both  law 
and  judicial  organization  were  somewhat  crude  and 
undeveloped  that  the  separation  of  the  two  kinds  of 


40  OUTLINE  SKETCH  OF  ENGLISH 

courts  was  an  improvement.  At  any  rate  it  would  seem 
to  the  men  of  that  time  that  in  the  change  made  by 
William  I  the  state  surrendered  nothing  of  its  own 
normal  jurisdiction.  It  turned  over  to  the  church  courts 
jurisdiction  over  ecclesiastical  questions  and  cases  only. 

The  church,  however,  which  confronted  Henry  II  was 
relatively  much  stronger  than  it  had  been  under  William 
as  a  result  of  two  changes  which  had  taken  place  in  the 
intervening  century.  In  the  first  place  the  conflict  over 
investitures,  over  lay  appointments  to  ecclesiastical 
office,  though  settled  by  a  compromise  under  William's 
son,  Henry  I,  had  brought  about  a  great  increase  of  the 
practical  power  of  the  church  as  compared  with  the 
state,  not  in  England  merely  but  throughout  Europe. 
The  church  did  secure  more  control  over  the  filling  of 
its  offices  which  gave  it  a  more  complete  and  more  stable 
organization.  In  the  second  place  the  church  in  Eng- 
land had  taken  advantage  of  the  doubtful  title  and  weak 
control  of  Stephen,  Henry  I 's  successor,  to  draw  into  its 
courts  all  cases  affecting  clerics,  even  those  naturally 
belonging  to  the  state  courts  like  criminal  cases  and 
questions  concerning  the  ownership  of  land.  It  had  gone 
far  beyond  the  position  in  independent  jurisdiction 
allowed  it  by  William  I. 

As  a  result  of  this  stronger  position  of  the  church  and 
of  the  vigorous  leadership  and  then  the  unfortunate 
murder  of  Thomas  Becket,  the  archbishop  of  Canterbury, 


CONSTITUTIONAL  HISTORY  41 

Henry  II  was  not  able  to  accomplish  his  entire  pro- 
gramme of  reform  but  was  obliged  to  surrender  to  the 
church  courts  a  part  of  the  criminal  jurisdiction  which 
it  had  usurped  though  naturally  belonging  to  the  state. 
The  church  did  not  succeed  in  retaining  all  that  it  had 
attempted  under  Stephen,  but  it  gained  much  in  prestige 
and  in  power,  and  it  passed  into  the  thirteenth  century 
as  an  independent  government,  almost  or  quite  as  strong 
as  the  state,  with  the  support  behind  it  of  a  great  inter- 
national monarchy  whose  authority  extended  over  the 
whole  of  Europe. 


CHAPTER  II 
FROM  MAGNA  CARTA  TO  PARLIAMENT 

The  Anglo-Norman  absolute  government  of  the  state 
reached  its  climax  in  the  reign  of  King  John,  youngest 
son  of  Henry  II  and  brother  of  Richard  the  Lion  Heart, 
which  covers  the  first  sixteen  years  of  the  thirteenth 
century.  In  English  literature  and  history  John  has 
lived  to  the  present  day  as  the  wickedest  of  tyrants,  with 
scarcely  one  redeeming  trait  of  character.  It  is  probable 
that  the  traditional  picture  is  a  bit  too  dark.  Something 
may  be  said  for  John,  at  least  in  the  way  of  intellectual 
ability  and  statesmanship,  and  much  for  the  strength  of 
his  position.  He  defied  the  thunders  of  the  imperial 
church  under  the  most  powerful  of  medieval  popes, 
Innocent  III,  and  maintained  his  defiance  unshaken  for 
years,  and  it  was  further  years  before  circumstances 
made  it  possible  for  the  barons  to  curb  his  power.  But 
the  indictment  of  character  and  the  accusation  of  tyr- 
anny are  too  well  supported  by  contemporary  evidence 
to  be  waived  aside.  His  disregard  of  all  rights  that  stood 
in  his  way,  the  cruelty  of  his  punishments,  and  his  acts 
of  personal  oppression  led,  when  an  opportunity  offered 


CONSTITUTIONAL  HISTORY  43 

towards  the  close  of  his  reign,  to  a  combination  of  the 
barons  against  him  which  was  too  strong  to  be  resisted. 

These  were  unquestionably  the  immediately  effective 
causes  which  led  to  the  successful  insurrection.  It  is 
very  likely  that  without  them  the  opposition  to  the 
institutional  changes  which  had  been  made  by  John's 
father  could  not  have  produced  united  action,  though 
certainly  John  by  his  own  arbitrary  conduct  had  added 
acts  of  doubtful  legality,  not  known  to  his  father's  reign 
nor  to  his  brother  Richard's,  but  involved  surely  enough 
in  any  logical  development  of  the  innovations  of  Henry 
II.  But  by  this  time  the  baronage  as  a  .whole  had  been 
taught  to  recognize  the  legal  foundation  of  their  cause 
as  against  the  king  which  existed  in  the  law.  They  saw 
also  how  difficult  it  was  to  bind  a  king  of  John's  char- 
acter by  any  ordinary  promises.  Consequently  the  con- 
cessions which  they  demanded  of  the  king  they  threw 
into  the  written  form  of  a  legally  binding  grant — the 
Great  Charter,  and  they  seem  to  have  been  careful, 
except  in  a  few  cases,  to  demand  nothing  which  they 
could  not  justify  in  the  law  as  it  existed.  By  this 
demand  and  by  the  documentary  form  which  they  gave 
to  it,  specific  and  permanent  in  character,  this  baronial 
opposition  to  the  highest  expression  yet  given  to  the 
Anglo-Norman  absolute  monarchy  took  the  first  step 
towards  the  limited  monarchy. 

The  barons  themselves  had  no  such  idea.     They  did 


44  OUTLINE  SKETCH  OF  ENGLISH 

not  intend,  or  even  suspect  what  they  really  did.  They 
had  and  could  have  no  such  idea  as  that  conveyed  to  us 
by  the  words  constitutional,  or  limited  monarchy,  a 
conception  still  in  the  distant  future  and  quite  beyond 
the  horizon  of  the  thirteenth  century.  They  based  their 
action  on  the  fundamental  principle  of  feudalism  which 
has  already  been  stated.  The  king  had  broken  the  feudal 
contract.  He  had  no  right  to  do  many  of  the  things 
which  he  had  done.  In  their  distrust  of  any  mere 
promises  which  he  might  make,  they  determined  to  bind 
him  for  the  future  in  the  strongest  way  possible  to  them, 
and  they  had  before  them,  recalled  to  their  minds  by 
the  archbishop  Stephen  Langton,  the  precedent  of 
Henry  I's  coronation  charter,  which  that  king  had  been 
obliged  to  grant  to  meet  a  similar  demand,  and  the  text 
of  that  legal  document.  They  accordingly  drew  up  a 
deed  of  gift,  based  on  the  form  for  the  most  unreserved 
conveyance  of  land  then  in  use,  in  which  the  king  bound 
himself  and  his  heirs  to  respect  for  the  future  for  them 
and  their  heirs  their  legal  rights  and  to  grant  them  in 
perpetuity  the  liberties  which  they  insisted  belonged  to 
them.  In  it  he  also  agreed,  as  another  derivation  already 
spoken  of  from  the  same  feudal  right  that,  in  case  he 
should  violate  their  rights  in  spite  even  of  his  promises 
made  in  this  form,  they  might  make  war  upon  him  and 
force  him  to  regard  the  law. 

This  deed  of  gift  was  Magna  Carta,  the  Great  Charter 


CONSTITUTIONAL  HISTORY  45 

of  English  liberties,  whose  seventh  centennial  we  have 
only  recently  passed.  If  we  regard  it  as  belonging  to 
the  year  1215  and  disregard  what  it  has  come  to  mean 
to  later  times,  Magna  Carta  was  in  substance  a  feudal 
document.  It  states  but  little  more  than  feudal  law, 
and  it  pledges  the  king  to  recognize  the  rights  of  the 
barons  merely  and  their  vassals.  Modern  scholars  have 
failed  to  find  in  it  any  of  the  great  principles  or  insti- 
tutions of  English  liberty  on  which  we  especially  pride 
ourselves:  Parliament,  consent  to  taxation,  the  jury 
trial,  Habeas  Corpus;  and  they  have  therefore  said  that 
the  influence  of  Magna  Carta  in  the  growth  of  the  Eng- 
lish constitution  and  of  English  liberty  has  been  greatly 
overstated.  The  conclusion  does  not  follow  from  the 
premises.  None  of  the  principles  named  is  in  the  ' 

<«/  rt. 

charter,  and  yet  it  was  by  a  very  true  instinct  that  the 
English  nation  recognized  for  centuries  that  the  Great 
Charter  was  the  palladium  of  their  liberties,  and  in  a 
very  right  sense  it  was  actually  the  beginning  of  the 

English  constitution  considered  as  limited  monarchy. 

Q 
For  what  the  Great  Charter  did  was  to  lay  down  two 

fundamental  principles  which  lie  at  the  present  day,  as 
clearly  as  in  1215,  at  the  foundation  of  the  English 
constitution  and  of  all  constitutions  derived  from  it. 
First  that  there  exist  in  the  state  certain  laws  so 
necessarily  at  the  basis  of  the  political  organization  of 
the  time  that  the  king,  or  as  we  should  say  today  the 


46  OUTLINE  SKETCH  OF  ENGLISH 

government,  must  obey  them;  and  second  that,  if  the 
government  refuses  to  obey  these  laws,  the  nation  has 
the  right  to  force  it  to  do  so,  even  to  the  point  of  over- 
throwing the  government  and  putting  another  in  its 
place.  That  this  second  principle  has  never  been  dis- 
tinctly affirmed  in  legal  form  since  the  thirteenth  cen- 
tury is  not  evidence  against  its  continued  existence. 
Even  the  thirteenth  century  expressed  it  only  as  a  right 
of  insurrection  to  force  conformity  to  the  law,  not  of 
the  deposition  of  the  king,  but  in  the  great  crises  of  the 
past  when  the  constitution  was  seriously  endangered,  the 
nation  never  hesitated  to  act  upon  the  extreme  right 
logically  involved  in  the  supremacy  of  the  law.  We 
have  only  to  remember  the  Declaration  of  Independence 
with  its  reiterated  statements,  that  what  the  king  of 
England  had  been  doing  was  an  infringement  of  the 
legal  rights  of  the  colonists  as  Englishmen,  until  the 
point  had  been  reached  when  he  was  "no  longer  fitted 
to  be  the  ruler  of  a  free  people."  The  principle  upon 
which  the  Declaration  of  Independence  rests  is  exactly 
the  same  as  that  upon  which  Magna  Carta  rests,  stated 
in  modern  terms  by  colonists,  i.e.,  by  a  portion  of  the 
nation  which  could  not  undertake  to  revolutionize  the 
whole.  In  every  age  of  English  history  in  which  the 
question  has  risen,  in  every  crisis  in  the  development  of 
English  liberty,  this  double  principle  is  that  upon  which 
our  ancestors  stood  and  upon  which,  as  a  foundation, 


CONSTITUTIONAL  HISTORY  47 

they  built  up  little  by  little  the  fabric  of  free  govern- 
ment under  which  we  live.  The  specific  and  individual 
legal  provisions  which  Magna  Carta  stated  may  soon 
have  disappeared  in  the  changing  social  conditions  of 

the  following  generations,  but  the  sound  judgment  of 

I       nL 

the  nation  insisted  that  successive  kings,  one  after  the 

other,  should  pledge  themselves  to  be  faithful  to  the 
Charter,  some  of  the  kings  many  times  over,  and  should 
confirm  to  them  the  liberties  which  it  granted.  In  these 
demands  they  did  not  intend  to  pledge  their  king  to 
laws  which  had  become  obsolete,  but  to  that  fundamental 
conception  which  underlay  all  special  provisions,  a  con- 
ception of  the  relation  of  the  government  to  the  governed 
which  has  become  almost  proverbial  in  the  Anglo-Saxon 
world — a  conception  not  expressed  in  the  definite  terms 
of  today,  which  would  have  been  impossible  to  the  thir- 
teenth century,  but  clearly  enough  implied.  These 
renewed  pledges  and  confirmations  continued  almost  to 
the  end  of  the  middle  ages,  until  the  supremacy  of  Par- 
liament had  come  to  be  rather  clearly  recognized  and  the 
chief  lines  of  the  modern  constitution  quite  distinctly 
laid  down.  Then  in  the  fifteenth  century,  when  we  may 
say  the  idea  of  a  constitutional  monarchy  had  become 
for  the  time  at  least  a  habit  of  the  English  mind,  they 
ceased. 

If  then  we  consider  1215  as  the  date  when  constitu- 
tional monarchy  began  and  Magna  Carta  as  the  first  step 


48  OUTLINE  SKETCH  OF  ENGLISH 

towards  it,  in  the  next  succeeding  centuries  two  other 
steps  were  taken.  First,  the  organization  of  a  con- 
tinuous and  consistent  opposition,  to  use  the  term  which 
has  become  technical  in  modern  constitutional  history, 
whose  practical  purpose  was,  however  unconsciously 
entertained  or  even  misunderstood,  to  protect  the  funda- 
mental principles  of  the  Charter  from  the  encroachments 
of  the  king;  and  second,  the  carrying  on  of  a  series  of 
experiments  in  order  to  devise  some  form  of  institutions 
in  which  this  fundamental  principle  of  the  national 
control  of  the  king's  government  might  be  permanently 
expressed  or,  to  state  the  object  in  more  modern  terms, 
in  which  a  limited  monarchy  might  be  constitutionally 
embodied.  For  an  idea,  or  an  ideal,  has  little  influence 
upon  the  actual  everyday  life  of  the  world  until  it  has 
been  expressed  in  workable  institutional  form,  and  in 
truth  the  work  of  the  great  institution  making  races  of 
history  has  been  less  to  cherish  or  to  promote  ideals 
than  to  invent  and  improve  workable  forms. 

In  the  history  as  it  actually  occurred,  this  attempt 
which  I  have  put  second,  to  find  constitutional  forms 
for  a  limited  monarchy,  in  reality  began  first,  for  the 
first  experiment  made  in  that  direction  was  in  the  Great 
Charter  itself.  In  the  famous  sixty-first  clause  of  that 
document,  a  standing  committee  or  board  of  twenty-five 
barons  was  constituted  whose  business  was  to  be  to  bring 
to  the  attention  of  the  king  any  violation  of  the  Charter 


CONSTITUTIONAL  HISTORY  49 

and  to  try  to  induce  him  to  remedy  the  matter.  If  he 
would  not,  it  was  then  their  right  to  make  war  upon 
him  with  the  support  of  all  the  nation  until  he  should 
be  brought  to  consent.  Then  he  was  to  be  obeyed  as 
king  as  before.  In  other  words  the  committee  of  barons 
was  first  to  decide  that  the  Great  Charter  had  been 
violated,  plainly  a  judicial  act,  and  then  as  a  last  resort 
they  were  virtually  to  suspend  the  king  from  office,  for 
in  making  war  upon  him  in  the  name  of  the  Charter 
they  assumed  that  they  were  acting  for  the  community 
more  truly  than  he. 

This  was  a  crude  and  clumsy  expedient,  but  it  is  to 
be  remembered  that  it  was  the  first  attempt  ever  made 
in  history  to  put  into  constitutional  form  the  principle 
that  the  government  must  obey  the  fundamental  laws  of 
the  state.  There  was  no  earlier  experiment  from  which 
the  men  of  1215  could  learn.  There  was  no  theoretical 
discussion  of  the  institutional  forms  of  a  limited  mon- 
archy in  the  literature  open  to  them.  Nor  should  its 
clumsiness  conceal  from  us  the  fact  that  in  this  first 
attempt  is  clearly  struck  the  keynote  of  English  con- 
stitutional history  and  foreshadowed,  faintly  perhaps 
but  truly,  what  is  its  final  triumph  and  greatest  glory, 
for  this  was  in  truth  an  attempt  to  find  a  way  of  enforc- 
ing the  fundamental  law  upon  the  king  without  the 
necessity  of  civil  war  and  revolution,  with  civil  war  and 
revolution  as  the  last  resort  only.  That  is  in  very  briefest 


50  OUTLINE  SKETCH  OF  ENGLISH 

form  of  statement  what  the  Anglo-Saxon  constitution 
is;  it  is  a  perfected  method  of  holding  the  government 
responsible  to  the  will  of  the  nation  without  the  constant 
danger  of  civil  war. 

Magna  Carta  considered  in  itself  accomplished  noth- 
ing. Apart  from  a  few  clauses,  mostly  of  temporary  and 
special  interest,  it  stated  only  principles  of  feudal  law, 
and  the  feudal  system  was  at  the  moment  upon  the  edge 
of  its  rapid  decline.  What  Magna  Carta  was  to  be  in 
the  future  of  English  history  would  depend  upon  the 
interpretation  given  to  it  in  the  next  age  and  especially 
upon  the  impression,  permanent  or  otherwise,  made  by 
its  fundamental  principle  that  the  king  may  be  legally 
held  to  obey  the  law. 

In  the  fifty  years  which  followed  the  Great  Charter, 
there  was  begun  that  perennial  struggle  which  char- 
acterizes English  history  for  four  hundred  years  between 
the  endeavor  of  the  king  to  free  himself  of  all  restric- 
tions, and  the  endeavor  of  the  nation  to  protect  and 
secure  its  own  interests.  In  the  thirteenth  century  this 
struggle  resulted  in  the  second  attempt  to  put  the 
responsibility  of  the  king  into  constitutional  form,  by 
removing  temporarily  in  1258  from  all  power  a  king, 
Henry  III,  who  could  not  be  trusted  and  vesting  the 
government  in  officers  and  commissions  appointed  by 
and  responsible  directly  to  the  Great  Council  or,  to  use 
the  name  by  which  it  was  then  beginning  to  be  called, 


CONSTITUTIONAL  HISTORY  51 

to  Parliament.  The  Provisions  of  Oxford,  as  this  con- 
stitution was  called,  marked  a  great  advance  in  half  a 
century  from  the  crude  beginning  of  clause  sixty-one 
of  Magna  Carta,  but  it  was  still  far  below  the  standard 
of  the  modern  constitution,  and  it  was  a  short-lived 
experiment  only.  It  did,  however,  establish  a  precedent 
for  future  experimenting  in  the  same  direction,  and  it 
has  a  special  interest  for  us  in  the  fact  that  it  reveals 
a  blind  reaching  forward  towards  what  was  to  be  one 
of  the  highest  achievements  of  the  modern  constitution — 
ministerial  responsibility  to  Parliament.  The  modern 
principle,  however,  growing  out  of  wholly  different 
conditions  and  making  its  way  slowly  and  "without 
observation,"  has  no  historical  connection  with  the 
Provisions  of  Oxford  nor  with  any  other  medieval 
experiment. 

The  Provisions  of  Oxford  were  short  lived  and  their 
permanent  value  was  merely  as  a  precedent  of  institu- 
tion making  and  a  renewed  assertion  of  the  fundamental 
principles  of  Magna  Carta.  But  the  same  reign,  that 
of  Henry  III,  son  and  successor  of  John,  saw  the 
beginning  of  two  new  historical  factors  which  were  to  be 
of  permanent  and  powerful  influence  in  the  making  of 
the  English  constitution.  As  one  of  these,  we  may  date 
from  this  reign  the  entry  of  the  nation  into  public 
affairs  as  a  determining  force,  the  consciousness  of  a 
corporate  and  organic  whole,  the  community.  For  the 


52  OUTLINE  SKETCH  OF  ENGLISH 

second,  we  may  date  from  this  reign  also  the  beginning 
of  Parliament. 

In  trying  to  make  clear  just  what  happened  in  the 
rise  of  a  national  consciousness,  it  is  easy  to  over- 
emphasize and  overstate  what  occurred.  The  modern 
democratic  nation,  with  city  and  country  on  an  even 
plane,  and  all  classes  with  equal  political  rights  and 
theoretically  with  power  to  determine  everything,  could 
have  no  existence  in  the  middle  ages.  The  medieval 
national  community  was  still  too  much  a  matter  of 
separate  classes.  Each  group  had  still  its  own  special 
interests  which  hardly  allowed  a  really  organic  unity 
to  form,  or  every  man  to  be  interested  in  at  least  some 
phase  of  common  public  affairs  and  to  take  part  to  that 
extent,  if  not  further,  in  determining  their  trend  as  in 
the  modern  state.  All  that  we  can  discover  in  the  reign 
of  Henry  III  is  the  beginning,  still  very  faint,  of  that 
ultimate  result.  And  yet  what  does  take  place  means 
then  no  small  change.  It  means  the  rise  even  at  the 
moment  of  a  new  political  influence  and  a  new  conception 
of  the  state. 

The  feudal  system,  as  a  form  of  organization  given 
to  the  state,  was  in  every  feature  of  its  political  opera- 
tion falling  to  pieces  in  the  thirteenth  century.  Its 
great  service  in  holding  the  state  together  in  an  age  of 
political  disintegration  was  no  longer  needed.  Its 
legislative,  judicial,  military,  and  financial  services  to 

. 


CONSTITUTIONAL  HISTORY  58 

the  state  were  finished  and  better  methods  of  getting  all 
these  services  performed  were  coming  in.  Along  with 
these  things  there  disappeared  also,  in  the  change  which 
marked  the  rise  of  a  national  consciousness,  the  general 
conception  of  the  state  which  feudalism  had  formed. 
The  king  ceased  to  be  looked  upon  as  primarily  the  lord 
of  vassals ;  the  kingdom  was  no  longer  to  be  his  barony, 
his  lordship,  which  he  might  exploit  as  he  pleased.  The 
idea  was  growing  up  instead  that  his  was  an  office ;  that 
his  chief  function  was  to  seek  and  serve  the  interests 
of  the  community  even  if,  as  it  now  begins  to  be  seen 
may  be  possible,  these  interests  are  in  conflict  with 
personal  interests  of  his  own.  The  community,  as  con- 
temporaries said,  and  we  hardly  dare  yet  to  say  the 
nation,  beginning  slowly  to  be  looked  upon  as  a  kind  of 
personal  whole,  a  corporate  unity,  might  have  its  own 
important  interest  which  might  be  injured  or  sacrificed 
by  the  things  the  king  would  like  to  do.  In  that  case  his 
interests  must  yield  and  the  community  might  insist  by 
force  that  its  views  should  prevail.  The  narrower  con- 
ception of  Magna  Carta,  that  the  barons  had  the  right 
to  protect  from  infringement  by  the  king  those  rights 
of  theirs  which  were  the  natural  outgrowth  of  the 
fundamental  principles  by  which  the  feudal  organization 
of  the  state  was  constituted,  was  broadening  out  into  the 
more  modern  conception  of  the  national  state  and  of 


54  OUTLINE  SKETCH  OF  ENGLISH 

the  relation  of  the  government  to  the  community  of  the 

ruled. 

But  in  trying  to  explain  the  ultimate  meaning  of  what 
was  taking  place,  the  impression  must  not  be  given  that 
this  was  a  theoretical  or  speculative  change,  or  one 
brought  about  by  reasoning  about  an  ideal  situation. 
It  was  intensely  practical.  It  grew  directly  out  of 
specific  abuses  and  expressed  itself  in  specific  complaints. 
The  English  barons  bitterly  complained  that  the  gifts 
which  the  king  heaped  upon  his  foreign  favorites  should 
of  right  belong  to  them.  The  eagerness  with  which  the 
king  pursued  abroad  his  own  interests,  in  which  the 
community  was  not  concerned,  but  for  which  it  had  to 
pay  heavily,  forced  upon  Englishmen,  the  king 's  natural 
subjects  as  they  said,  the  consciousness  of  their  corporate 
unity  and  corporate  interests  as  against  the  foreigner. 
The  many  who  were  concerned  were  made  to  draw  a 
sharp  line  between  Englishmen  and  non-Englishmen 
and  between  their  interests  and  the  separate  interests 
of  the  king.  This  new  conception  of  the  relation  of 
the  king  to  the  community  of  the  governed  grew  more 
clear  and  controlling  as  the  reign  went  on,  but  then  as 
always  the  practical  sense  of  the  race  led  it  to  express 
in  legal  form  the  ruling  interests  of  the  particular 
moment,  rather  than  to  make  a  theoretically  complete 
statement.  To  bind  the  king  to  regard  the  interests  of 


CONSTITUTIONAL  HISTORY  55 

the  community,  they  made  a  new  application  of  the 
principle  of  Magna  Carta. 

In  1258  as  in  1215,  the  king  refused  to  accept  the 
barons'  interpretation  of  his  duty  until  he  was  com- 
pelled to  do  so.  In  1258  in  framing  securities  for  future 
good  government,  the  barons  found  themselves  obliged 
to  go  farther  than  the  barons  of  1215  had  done  in  clause 
sixty-one  of  the  Great  Charter,  but  in  the  same  direction. 
To  protect  the  concessions  made  in  the  Charter,  the 
barons  had  demanded  the  exercise  of  one  royal  pre- 
rogative, the  judicial.  The  Provisions  of  Oxford  of 
1258  virtually  suspended  the  king  from  all  power  and 
vested  the  whole  government  for  the  time  being  in 
commissions  responsible  to  the  great  Council.  In  form 
this  was  going  a  good  deal  farther  than  clause  sixty-one, 
but  logically  it  was  only  a  more  complete  expression  of 
the  same  principle,  that  a  king  who  would  not  rule 
according  to  law,  or  as  we  may  now  begin  to  say,  as 
the  nation  wished  him  to,  might  be  removed  from  the 
government. 

Constitutionally  the  Provisions  of  Oxford  were  an 
attempt  to  put  the  limitation  of  the  king  into  institu- 
tions which  would  work  practically.  As  such  the 
Provisions  had  a  profound  influence  on  the  future. 
The  idea  of  the  responsibility  of  the  king's  ministers 
to  the  great  Council,  which  they  vaguely  expressed  in 
their  commissions,  gets  its  most  perfect  medieval 


56  OUTLINE  SKETCH  OF  ENGLISH 

expression  in  the  process  of  impeachment  something 
more  than  a  hundred  years  later,  and  becomes  the 
formative  plan  of  all  attempts  to  put  the  limited 
monarchy  into  institutional  form  down  to  the  seven- 
teenth century.  In  fundamental  meaning  the  Provisions 
of  Oxford  are  even  more  important  for  they  were  a 
long  step  towards  government  for  the  people  and  by 
the  people.  Said  the  poet  of  the  barons'  cause  who 
wrote  in  1264:  "Since  the  government  of  the  realm  is 
the  safety  or  ruin  of  all,  it  matters  much  in  whom  is  its 

guardianship It  is  the  glory  of  a  king  to  save 

many,  by  his  own  pains  to  relieve  many.  Let  him  not 
urge  therefore  his  own  interests,  but  regard  his  subjects 
who  trust  in  him;  if  he  has  saved  the  kingdom,  he  has 
done  the  duty  of  a  king."  But  this  conception  of 
government,  clearly  held,  was  still  far  off  in  the  future. 
It  is  only  the  faint  beginning  of  a  drift  in  the  current 
of  history  that  we  can  detect  here,  but  it  was  a  drift 
that  never  ceased.  However  vaguely  seen  or  felt,  this 
conception  underlies  the  whole  constitutional  progress 
of  the  future  and  is  in  reality  the  solid  foundation  of 
every  new  advance.  The  seventeenth  century  when  it 
formulated  clearly  the  doctrine  of  the  sovereignty  of 
the  people  only  completed  what  the  thirteenth  century 
began. 


CHAPTER  III 

THE    BEGINNING    AND    GROWTH    IN    POWER 
OF  PARLIAMENT 

Before  the  close  of  the  reign  of  Henry  III  another 
beginning  was  made  of  great  constitutional  importance 
for  the  future,  the  beginning  of  Parliament.  Though 
in  origin  and  history  for  more  than  a  hundred  years 
outside  the  line  of  growth  by  which  the  limited  monarchy 
was  being  formed,  Parliament  was  destined  before  very 
long  to  take  the  chief  part  in  that  development,  and  to 
become  the  vehicle  for  the  continuous  and  consistent 
opposition  to  the  crown  to  which  the  guardianship  of 
the  constitution  was  committed. 

The  germ  from  which  Parliament  grew  was  the 
existing  national  assembly  of  the  state,  the  great  Council. 
This  was  a  feudal  assembly.  It  was  composed  of  the 
king's  vassals,  and  the  idea  of  the  service  which  they 
were  rendering  in  making  up  the  assembly  was  a  feudal 
idea.  The  service  was  a  part  of  that  which  they  had 
engaged  to  render  the  king  for  the  fiefs  they  held. 
Notwithstanding  the  fact  that  occasionally  some  person 
was  called  to  the  assembly  by  the  king  who  had  no 


68  OUTLINE  SKETCH  OF  ENGLISH 

connection  with  him  by  a  feudal  tie,  it  would  have 
seemed  impossible  to  the  twelfth  century,  at  least  in  so 
highly  feudal  a  country  as  England,  that  men  should 
be  admitted  in  numbers  to  the  assembly  as  delegates  of 
a  great  class  in  the  community  which  stood  in  no  vassal 
relationship  to  the  king.  It  is  no  slight  sign  of  the 
decline  of  feudal  ideas  in  their  hold  upon  the  community 
that  it  did  seem  possible  in  the  last  half  of  the  thirteenth 
century.  In  these  sentences  has  really  been  described 
in  simplest  terms  the  origin  of  Parliament.  It  was  the 
introduction  into  the  feudal  great  Council  of  the  repre- 
sentatives of  classes  in  the  community  which  in  feudal 
days  had  had  no  standing  there,  the  representatives 
of  the  commercial  classes  and  of  the  small  landowners. 
But  the  extent  of  the  change  should  not  be  exaggerated. 
j  It  should  be  remembered  that  there  is  no  evidence  to 
[  show  that  these  new  elements  in  Parliament  were 
allowed  during  that  century  any  share  in  its  determining 
\  and  deciding  functions  over  any  class  or  interests  except 
their  own. 

Into  the  feudal  great  Council  then  were  brought  new 
elements,  not  on  a  feudal  basis  and  representing  classes 
in  the  community  which  were  essentially  not  feudal. 
The  result  was  a  structural  change,  very  similar  in 
character  to  that  by  which  the  earlier  Teutonic  national 
assembly  was  made  over  into  the  feudal  great  Council. 
It  was  like  that  the  introduction  of  a  new  principle  of 


CONSTITUTIONAL  HISTORY  59 

composition,  the  principle  of  representation.  Scholars 
have  not  yet  come  to  an  agreement  among  themselves 
as  to  the  source  from  which  the  idea  or  the  practice  of 
representation  was  derived,  nor  can  we  say  that  they 
were  looked  upon  at  the  close  of  the  thirteenth  century 
with  anything  like  our  modern  clearness  of  under- 
standing. They  were  understood,  however,  clearly 
enough  to  be  consciously  applied  in  the  step  that  was 
taken,  and  from  that  beginning  they  have  grown 
through  uninterrupted  experience  into  our  present-day 
conception  of  representative  government.  And  also  we 
must  not  overlook  the  fact  that  the  new  principle  was 
less  completely  applied  to  the  old  institution,  than  in  the  \ 
earlier  change  to  a  feudalized  assembly.  The  old  great 
Council  remained  unchanged.  For  a  long  time  it  still 
acted  now  and  then  alone  as  Parliament,  and  for  a  / 
longer  time  yet  traces  of  its  independent  powers  and 
functions  survived.  The  new  elements  were  grouped 
around  it,  not  organically  absorbed  into  it  changing  its 
nature.  It  still  exists  in  fact,  almost  unchanged,  in  the 
present  House  of  Lords. 

Before  very  long  these  new  elements  drew  off  by 
themselves  into  a  separate  "House,"  the  House  of 
Commons,  leaving  the  old  great  Council  by  itself  as 
the  other  house  of  the  new  Parliament.  The  surviving 
great  Council,  however,  changed  in  one  respect.  It  was 
no  longer  in  the  strict  sense  a  feudal  body.  Its  members 


60  OUTLINE  SKETCH  OF  ENGLISH 

were  descendants  of  the  feudal  barons;  the  hereditary- 
feature  remained ;  their  service  was  based  in  form  upon 
the  old  service,  but  no  one  any  longer  thought  of  it  as 
a  return  for  land  and  all  ideas  about  it  that  were  really 
feudal  died  out,  were  dying  out  in  England  in  general 
at  that  time,  except  in  deductions  that  were  merely  legal 
or  ceremonial. 

The  new  elements  were  first  introduced  into  the  old 
Council  not  in  conformity  to  any  theory  that  was  then 
held,  nor  with  any  intention  of  permanent  policy.  The 
step  was  first  taken  to  serve  an  immediate  practical  end 
and  implied  no  pledge  nor  even  desire  on  anyone's  part 
that  the  experiment  should  be  repeated.  Deputies  from 
the  English  counties  were  summoned  to  a  meeting  of 
the  Council,  in  this  case  the  small  Council,  in  1254,  to 
report  the  feeling  of  the  counties  about  a  tax  which 
the  government  desired  to  lay.  In  the  process  by  which 
this  introduction  was  made,  a  precedent  was  exactly 
followed  which  had  long  been  in  use  when  the  Council 
acting  as  a  court  desired  a  report  from  a  county  court 
upon  their  action  in  some  case  which  had  been  before 
them.  Deputies  from  the  boroughs  and  cities  were  first 
introduced  into  the  Council  by  the  revolutionary  leader, 
Simon  de  Montfort,  in  1265,  apparently  from  a  desire 
to  strengthen  his  party,  which  had  for  some  time  been 
declining.  Of  the  action  of  this  Parliament,  the  first 
containing  all  the  elements  of  the  future  Parliament,  we 


CONSTITUTIONAL  HISTORY  61 

know  little,  but  it  seems  highly  improbable  that  the  new 
elements  exercised  any  other  function  than  that  of 
giving  information  and  advice,  the  conciliar  function 
proper. 

For  fifty  years  and  more  after  these  dates,  form  and 
function  of  the  new  institution  were  not  fixed  by  any 
certain  rules.  In  membership,  in  manner  of  internal 
organization,  and  in  method  of  operation,  what  seems 
to  us  like  aimless  experimenting  was  going  on  in  the 
interval.  In  1295  what  is  known  as  the  Model  Parlia- 
ment was  called  together  by  Edward  I.  It  was  a  model 
Parliament  in  the  sense  that  it  contained  all  the  elements 
that  go  to  form  later  Parliaments,  but  it  contained  also 
one  element,  the  representatives  of  the  lower  clergy, 
which  soon  dropped  out  of  Parliamentary  history. 
Nor  was  this  Parliament  in  organization  any  more 
nearly  an  exact  model  than  in  composition,  for  the 
representatives  of  the  counties,  the  knights  of  the  shires, 
met  with  the  greater  barons,  and  burgesses  and  clergy 
each  met  by  themselves.  It  was  a  Parliament  of  three 
houses,  like  later  French  Estates  General,  the  first  estate 
the  clergy,  the  second  the  nobles,  and  the  third  the 
burgesses,  a  form  of  organization  corresponding  more 
closely  to  the  organization  of  feudal  society  than  that 
into  which  the  English  Parliament  finally  settled. 
Parliament  passed  into  the  fourteenth  century  with 
composition  and  organization  still  unsettled. 


62  OUTLINE  SKETCH  OF  ENGLISH 

If  Parliament,  as  an  institution  for  practical  use,  was 
vague  and  formless  in  the  thirteenth  century,  it  was 
equally  true  that  it  was  for  purely  practical  reasons 
that  the  change  which  created  Parliament  was  made, 
not  as  carrying  out  any  theory  of  government.  Appar- 
ently what  was  chiefly  desired  in  drawing  the  new 
elements  into  the  great  Council  was  information,  in  a 
way  authorized,  of  the  local  feeling  about  pending 
questions  from  delegates  whose  report  was  the  only 
"  share  they  took  in  the  final  decision,  unless  the  question 
seemed  to  concern  exclusively  their  own  class.  If  the 
printing  press  and  the  telegraph  had  existed  in  the  last 
half  of  the  thirteenth  century  to  render  possible  the 
Jl  easy  collection  of  information  from  all  parts  of  the 
country,  we  may  question  whether  representative  insti- 
tutions would  ever  have  been  invented,  for  their  purpose 
could  have  been  more  easily  served  in  another  way. 
For  a  long  time  Parliament,  bringing  its  members 
together  in  a  single  assembly  from  all  parts  of  the 
country,  was  the  only  means  by  which  the  public 
opinion  of  the  nation  could  be  ascertained  and  brought 
to  bear  upon  the  government.  Political  organization, 
party  campaigns,  public  discussion,  and  newspapers 
were  still  a  long  way  in  the  future. 

If  Parliament  entered  the  fourteenth  century  with 
composition,  organization  and  methods  of  working  still 
undetermined,  all  these  questions  were  rapidly  settled. 


CONSTITUTIONAL  HISTORY  63 

The  two  new  elements,  representatives  of  the  counties 
and  representatives  of  the  towns,  became  permanent 
features  of  the  new  institution.  The  ecclesiastical 
element,  the  representatives  of  the  general  clergy,  with- 
drew to  perform  their  parliamentary  duties  in  assem- 
blies of  their  own,  called  Convocation.  Parliament  \ 
settled  into  an  organization  of  two  houses,  not  upon  ' 
any  definite  theory  that  two  were  better  than  one  or 
three,  nor  with  any  clear  plan  or  purpose,  but  largely 
by  accident,  because  the  church  which  should,  according 
to  continental  analogy,  have  formed  a  third  house, 
chose  to  remain  outside.  But  it  was  by  no  accident, 
though  no  doubt  a  thing  not  planned,  that  the  repre- 
sentatives of  the  counties,  who  were  drawn  from  an 
aristocratic  landowning  class,  a  minor  aristocracy, 
joined  in  the  house  of  "Commons"  with  the  represent- 
atives of  the  towns  who  came  from  the  commercial, 
burgher  class.  This  union  occurred  in  no  other  country 
of  Europe,  and  it  points  to  peculiar  social  conditions 
in  England. 

To  describe  what  lay  behind  these  conditions  in  the 
way  of  cause  would  carry  us  too  far  afield  in  this  out- 
line sketch,  but  the  result  may  be  briefly  stated.  The 
merchant  burgher,  the  political  equal  of  the  minor 
baron  in  the  county  court,  was  in  fourteenth-century 
England  regarded  as  his  social  equal  also,  married  his 
sons  and  daughters  into  knightly  families  without 


64  OUTLINE  SKETCH  OF  ENGLISH 

exciting  opposition,  and  found  no  obstacle  to  the  pur- 
chase of  land  or  even,  if  he  wished,  to  the  foundation 
of  a  knightly  family  of  his  own.  While  barriers  of 
custom  and  interest  were  being  raised  between  the  great 
and  minor  barons,  they  were  being  broken  down  between 
the  latter  and  the  burghers.  On  the  continent  the  minor 
barons  formed  a  part  of  the  barons'  house  as  they  had 
in  England  in  some  parts  of  the  thirteenth  century,  but 
in  the  fourteenth  century  the  English  knights  finally 
found  themselves  more  at  home  with  the  burgesses,  and 
the  House  of  Commons  was  formed  by  the  combination 
of  these  two  classes.  This  is  probably  all  that  we  need 
to  say  by  way  of  explanation,  the  knights  found  them- 
selves more  at  home  with  the  burgesses. 

This  unintended  event  probably  determined  the  rapid 
advance  of  Parliament  in  power  during  the  fourteenth 
century,  for  that  advance  in  reality  was  not  that  of  both 
houses  of  Parliament  equally  but  of  the  House  of 
Commons.  The  House  of  Lords  considered  by  itself  was 
relatively  of  less  importance  at  the  close  than  at  the 
beginning  of  the  century.  The  House  of  Commons 
evidently  had  in  that  age  admirable  leadership,  a  high 
degree  of  self-confidence,  and  a  feeling  of  equality  with 
lords  and  royal  ministers  which  were  not  generally 
characteristics  of  the  third  estate  in  the  Europe  of  that 
day  nor  for  long  afterwards. 

In  entering  upon   the   fourteenth  century  with   its 


CONSTITUTIONAL  HISTORY  65 

function  in  the  state  only  vaguely  defined  and  its  power 
as  a  factor  in  the  government  not  even  foreseen,  Parlia- 
ment had  before  it  a  great  task,  if  the  foundations  of  its 
dominance  in  the  modern  constitution  were  then  to  be 
laid.  Towards  this  result  three  things,  by  no  means 
small  things,  were  accomplished,  or  at  least  begun,  in 
that  century:  the  establishment  of  the  control  of  Par- 
liament over  all  forms  of  public  revenue;  the  establish- 
ment of  the  right  of  the  House  of  Commons  to  a  voice 
in  every  act  of  legislation ;  and  the  establishment  of  the 
right  of  Parliament  to  supervise  and  direct  the  general 
policy  of  the  government.  The  way,  however,  for  the 
taking  of  these  three  steps  in  advance  had  been  prepared 
by  certain  events  of  the  thirteenth  and  early  fourteenth 
centuries  which  lie  outside  the  history  of  the  new 
Parliament. 

In  1215  in  two  famous  clauses  of  Magna  Carta,  the 
principle  was  asserted  that  no  feudal  aids  except  those 
provided  for  by  the  feudal  contract,  nor  the  feudal 
payment  called  "scutage,"  should  be  called  for  by  the 
king  unless  with  the  consent  of  the  great  Council.  If 
we  leave  unsettled  the  question  of  the  arbitrary  action 
of  King  John  and  a  certain  difficulty  of  statement 
regarding  scutage,  this  principle  corresponds  to  the 
practice  of  the  past,  so  far  as  we  know  it,  and  is  well 
founded  in  feudal  law,  but  it  was  omitted  from  all  the 
reissues  of  the  Charter  by  the  next  king,  Henry  III. 


66  OUTLINE  SKETCH  OF  ENGLISH 

Why  it  was  omitted  is  something  of  a  puzzle,  unless  it 
was  from  the  difficulty  of  exact  statement  referred  to 
in  regard  to  scutage,  because  the  practice  of  the  reign 
and  of  the  following  reign  of  Edward  I,  until  near  the 
close  of  the  century,  conformed  to  the  original  Charter. 
Edward  I,  however,  found  himself  in  serious  financial 
difficulties  when  he  became  involved  in  war  with  France 
and  Scotland  at  once.  Even  the  new  Parliament,  acting 
for  all  classes  of  the  nation  together,  did  not  provide 
him  with  all  the  money  that  he  thought  necessary.  The 
church  was  beginning  to  object  to  the  increasing  taxa- 
tion of  the  clergy  by  the  state  and  even  to  try  to  forbid 
it  entirely. 

In  these  circumstances  Edward  believed  that  the 
necessities  of  the  state  were  so  great  that  he  was  justified 
in  collecting  money  from  the  community  without  pre- 
vious consent.  At  the  moment,  however,  a  majority  of 
the  great  barons,  representing  the  traditions  of  baronial 
opposition  to  his  father,  Henry  III,  which  had  culmi- 
nated in  the  Provisions  of  Oxford,  were  from  a  variety 
of  reasons,  some  of  them  merely  personal,  ready  to  take 
advantage  of  any  mistake  which  the  king  might  make. 
They  seized  this  opportunity.  They  may  not  have  been 
particularly  interested  in  establishing  consent  to  taxa- 
tion as  a  fundamental  principle  of  the  constitution,  nor 
indeed  have  had  any  constitutional  ideas  at  all,  but 
the  demand  was  clearly  in  line  with  the  baronial 


CONSTITUTIONAL  HISTORY  67 

opposition  of  the  thirteenth  century  which  they  repre- 
sented and  the  practice  of  the  century  gave  them  a 
decided  advantage. 

The  king  found  himself  obliged  .to  yield  the  point  and 
the  principle  was  formulated  in  the  so-called  Confirma- 
tion of  the  Charters  in  1297.  The  statement  of  the 
principle  then  made  was  no  doubt  intended  by  those 
who  drew  it  up  to  cover  all  forms  of  revenue  except 
those  allowed  by  the  feudal  law  and  to  cut  off  all 
possibility  of  arbitrary  taxation.  "Moreover  we  have 
granted  for  us  and  our  heirs,"  the  king  was  made  to 
say,  ".  .  .  .  to  all  the  commonalty  of  the  land  that  for 
no  business  from  henceforth  will  we  take  such  manner 
of  aids,  tasks,  nor  prises,  but  by  the  common  consent  of 
the  realm  and  for  the  common  profit  thereof  saving  the 
ancient  aids  and  prises  due  and  accustomed." 

So  stated  and  accepted  by  the  king,  the  Confirmation 
of  the  Charters  may  be  said  to  have  restored  to  the 
tradition  of  Magna  Carta  the  principle  of  consent  to 
taxation,  not  limited  now  as  in  the  original  clauses  to 
feudal  revenues  but  broadened  out,  as  taxation  itself 
had  broadened  during  the  century,  to  cover  all  new 
forms  of  revenue.  From  this  date  on  this  principle, 
as  the  fundamental  rule  of  action,  was  never  called  in 
question  by  any  English  king.  Successive  kings  might 
try  to  avoid  its  effect  by  inventing  new  forms  of  revenue 
to  which  they  could  say  it  did  not  apply  or  by  unwar- 


68  OUTLINE  SKETCH  OF  ENGLISH 

ranted  extensions  of  old  revenues,  but  from  this  date 
it  was  definitely  established  as  a  fundamental  law  of 
the  constitution  that  the  king  was  dependent  for  his 
revenue  upon  a  previgus  grant. 

Hardly  had  this  principle  been  established  when  the 
next  step  forward  was  taken.  The  guardianship  of  the 
constitution  which  was  beginning  to  form  was  still  in 
the  hands  of  the  baronial  opposition  rather  than  of 
Parliament,  but  the  new  step  was  the  first  move  in  the 
slow  crossing  over  of  constitutional  development  from 
the  line  of  baronial  to  that  of  Parliamentary  supervision 
and  protection.  Edward  II  was  successful  before  he 
had  been  many  months  in  possession  of  the  throne  in 
exciting  against  himself  a  vigorous  and  determined 
opposition.  In  the  Parliament  of  1309,  a  Parliament  of 
the  new  type  not  a  mere  great  Council,  a  grant  of  taxes 
was  made  to  the  king  "upon  this  condition"  that  he 
give  attention  to  a  certain  list  of  grievances  attached 
to  the  grant,  of  which  the  Commons  complained,  and  find 
a  remedy  for  them.  The  list  in  itself  is  not  important 
and  marks  no  constitutional  advance.  It  was  also  a 
generation  or  more  before  the  attaching  of  conditions  to 
grants  of  money  became  a  recognized  feature  of  Parlia- 
mentary procedure  and  we  are  hardly  justified  in 
beginning  with  1309,  or  with  any  of  the  less  complete 
instances  which  preceded  it,  the  continuous  history  of 
Parliament's  use  of  the  financial  necessities  of  reluctant 


CONSTITUTIONAL  HISTORY  69 

kings  to  force  them  to  grant  reforms.  It  is  interesting, 
however,  to  notice  how  quickly  after  it  became  possible, 
the  new  Parliament  began  to  make  experiment  with  this 
weapon. 

We  are  accustomed  to  think  of  the  English  constitu- 
tion as  one  in  which  Parliament,  or  more  specifically  the 
House  of  Commons  as  representing  the  nation,  is  in 
supreme  control  of  all  of  the  functions  and  operations 
of  government.  But  at  the  beginning  of  the  fourteenth 
century  we  stand  at  the  beginning  of  Parliament  as  the 
organ  of  representative  government  not  merely  in 
England  but  in  all  history.  What  it  was  to  be,  the  share 
which  it  was  to  take  in  actual  government,  was  still  to 
be  determined.  As  yet  nothing  was  fixed;  the  rights 
and  functions  of  the  new  institution  were  vague  and 
undefined;  nothing  was  known  even  of  its  possibilities. 
As  the  successor  of  the  feudal  great  Council  and  heir 
of  the  principles  into  which  feudal  consent  to  taxation 
had  been  transformed  during  the  thirteenth  century, 
that  each  class  in  the  community  should  give  consent  to 
its  own  taxation,  Parliament  had  a  starting  point  of  the 
greatest  strategic  value  from  which  to  begin  its  advance 
to  power.  How  conscious  Parliament  was  of  the 
meaning  of  this  advantage  we  hardly  dare  to  say  and 
at  most  it  was  a  starting  point  only.  The  struggle  to 
win  full  control  of  national  revenue  and  expenditure 
was  to  be  long  and  severe.  In  legislation  hardly  even 


70  OUTLINE  SKETCH  OF  ENGLISH 

a  starting  point  for  the  new  institution  had  yet  been 
found,  and  in  the  determination  of  the  general  policy 
of  the  government,  Parliament  foresaw  its  own  future 
so  little  that  it  sometimes  vigorously  repudiated  such 
an  ambition  and  laid  the  foundations  of  its  later  power 
in  entire  unconsciousness  of  what  it  was  doing. 

Yet  to  secure  these  three  things  was  necessary  before 
modern  Parliamentary  government  could  come  into 
existence :  complete  control  by  Parliament  of  all  national 
revenue  and  expenditure;  the  exclusive  exercise  of  the 
legislative  right  by  Parliament,  including  the  House  of 
Commons  as  an  equal  partner  in  every  act;  and  the 
power  to  determine  the  general  policy  which  at  any 
moment  of  time  should  give  character  and  purpose  to  the 
government.  At  the  end  of  the  fourteenth  century  no 
one  of  these  had  been  so  far  secured  as  to  be  beyond 
future  danger,  but  great  progress  had  been  made  towards 
them  all  and  in  regard  to  the  first  at  least  but  little 
comparatively  speaking  yet  remained  to  be  done. 

It  was  in  the  control  of  taxation  that  the  greatest 
progress  was  made  in  this  age,  and  from  the  starting 
point  which  Parliament  thus  secured  in  its  sole  power  to 
provide  revenue,  it  even  reached  forward  to  begin  the 
practice  of  examining  and  criticizing  the  way  in  which 
the  revenue  was  used.  The  men  of  1297  when  they 
pledged  the  king  in  the  Confirmation  of  the  Charters  to 
take  no  taxes  without  previous  consent  may  have  thought 


CONSTITUTIONAL  HISTORY  71 

that  they  had  cut  off  all  important  sources  of  revenue, 
but  within  a  few  years  they  discovered  their  mistake. 
The  largest  and  most  lucrative  product  for  export  of  the 
England  of  the  fourteenth  century  was  wool,  and  Eng- 
lish wool  was  the  chief  supply  of  the  rich  manufacturing 
cities  which  had  grown  up  in  the  Low  Countries  across 
the  Channel.  The  foreign  merchants  who  traveled 
through  England  to  buy  up  the  wool  from  the  monas- 
teries and  manorial  lords  were  not  interested  in  the 
English  constitution  nor  in  the  problem  of  controlling 
the  king  through  taxation.  On  the  other  hand,  they 
were  greatly  interested  in  the  protection  and  privileges 
which  the  king  could  give  them  in  the  port  towns,  in 
the  markets,  and  on  the  highways  of  the  country,  and 
they  stood  ready  to  pay  him  for  what  he  had  to  give. 
It  was  a  simple  matter  to  arrange  between  the  mer- 
chants and  the  king  an  export  duty  on  the  sack  of  wool 
which  was  easy  to  collect  and  richly  productive  not 
merely  from  the  size  of  the  crop  but  also  from  the  high 
money  value  of  the  pound  of  wool.  This  was  a  difficult 
matter  for  Parliament  to  deal  with  because  Edward  III 
argued  with  much  plausibility  that  the  foreigners  paid 
the  tax  and,  though  Parliament  detected  the  fallacy  and 
insisted  that  the  tax  was  deducted  from  the  purchase 
price,  it  was  only  towards  the  end  of  the  reign  that  the 
king  was  finally  brought  to  renounce  the  practice  for 
good  and  all. 


72  OUTLINE  SKETCH  OF  ENGLISH 

The  long  war  with  France  which  filled  so  much  of 
the  reign  of  Edward  III  was  favorable  to  Parliament. 
The  king  was  in  constant  need  of  money  and  it  would 
very  naturally  seem  to  him  more  than  once  that  what 
he  expected  to  gain  in  France  was  more  important  than 
the  concession  which  Parliament  was  at  the  moment 
demanding.  No  earlier  English  king  had  been  obliged 
to  ask  for  such  frequent  grants  of  money  as  Edward  III. 
To  Parliament,  not  familiar  with  the  heavy  expenses  of 
the  war,  it  seemed  not  unnaturally  that  the  money  must 
somehow  be  wasted.  They  were  disposed  to  demand  an 
explanation  and  to  say  to  the  king :  What  have  you  done 
with  the  money  which  we  gave  you  last  year  for  this 
same  purpose?  The  king  knew  very  well,  however,  the 
weight  of  expense  which  the  war  entailed,  and  it  may 
quite  likely  have  seemed  to  him  that  an  easy  way  of 
proving  his  good  faith  was  to  allow  Parliament  to  elect 
the  treasurers  who  should  collect  and  spend  the  money 
granted,  and  to  allow  the  treasurers  to  exhibit  their 
accounts  in  Parliament,  or  to  let  them  be  audited  by  a 
Parliamentary  committee. 

Edward  knew  the  honesty  of  his  own  intentions  and 
what  interested  him  most  was  that  by  such  a  simple 
expedient  Parliament  could  clearly  be  convinced  that 
the  king  had  spent  the  money  as  he  had  engaged  to  spend 
it.  Neither  the  king  nor  Parliament  understood  what 
was  involved  in  this  innocent-seeming  beginning.  It 


CONSTITUTIONAL  HISTORY  73 

was  in  truth  the  starting  point  of  Parliamentary  appro- 
priations, of  appropriating  the  national  revenue  to 
government  expenses  in  detail,  which  modern  Anglo- 
Saxon  Parliaments  practically  regard  more  highly  than 
the  more  fundamental  right  of  granting  the  revenue, 
because  it  secures  in  a  high  degree  though  indirectly  a 
control  of  government  policy.  If  Parliament  refuses  an 
appropriation  for  a  specific  purpose,  government  must 
abandon  that  purpose.  No  one  in  the  fourteenth  cen- 
tury, however,  saw  this  possibility  and,  though  the 
practice  of  setting  aside  certain  revenues  to  particular 
objects  was  carried  sbmewhat  farther  in  the  next  fifty 
years,  modern  appropriations  to  minute  details  of 
government  expenditure  had  to  await  the  full  estab- 
lishment of  Parliamentary  powers  at  the  end  of  the 
seventeenth  century. 

The  establishment  of  the  modern  methods  of  legis- 
lation was  not,  as  in  the  case  of  taxation,  the  expansion 
of  an  old  process  to  meet  new  conditions.  It  was  rather 
the  establishment  of  a  new  method  at  the  expense  of  the 
old  which  was  finally  driven  out  of  the  field.  The  feudal 
method  of  legislation  had  been  by  the  king  and  the 
Council,  either  the  great  or  the  small  Council,  since,  it 
will  be  remembered,  there  was  no  difference  in  function 
between  these  two  bodies.  In  this  function  so  exercised, 
the  new  elements  brought  into  the  great  Council  to  form 
the  modern  Parliament  had  had  no  previously  regular 


74  OUTLINE  SKETCH  OF  ENGLISH 

and  recognized  share,  as  they  had  had  in  taxation, 
neither  through  their  representatives  nor  as  the  classes 
which  were  represented.  The  only  process  open  to  them, 
if  they  wished  to  initiate  legislation,  was  to  petition  the 
king  that  such  and  such  a  law  be  made.  Apparently 
even  the  Council,  which  had  from  the  beginning  a 
recognized  share  by  advice  and  consent  in  acts  of  legis- 
lation, if  it  wished  to  initiate  legislation  of  its  own,  in 
place  of  acting  on  matters  laid  before  it  by  the  king, 
took  the  first  step  in  the  process  by  a  petition  to  the 
king.  In  fact  in  making  use  of  this  procedure  by 
petition  as  the  beginning  of  modern  legislation,  the  new 
Parliamentary  elements  were  employing  a  practice  which 
was  then  exceedingly  common.  The  right  of  petitioning 
the  king  for  some  exercise  of  his  royal  prerogative  was 
during  these  generations  not  merely  originating  modern 
legislation  but  was  also  rapidly  developing  that  great 
division  of  our  jurisprudence  which  is  known  as  equity. 
The  chief  practical  difficulty  to  be  overcome,  however, 
in  establishing  modern  legislative  methods  was  not  to 
get  the  right  of  the  House  of  Commons  to  initiate 
legislation  by  petitions  recognized.  That  was  an  easy 
matter.  The  difficulty  was  to  establish  an  exclusive 
right  for  the  new  legislation,  to  drive  the  older  method 
of  Council  legislation  completely  out  of  the  field  and 
limit  all  law  making  to  Parliamentary  petitions.  This 
was  the  purpose  which  the  House  of  Commons  set  before 


CONSTITUTIONAL  HISTORY  75 

itself  in  the  fourteenth  century,  perhaps  unconsciously, 
and  so  great  was  the  task  to  prove  that  it  was  not 
completely  accomplished  until  many  generations  later. 
The  right  of  the  Commons  to  have  a  voice  in  the  making 
of  every  statute  law  was  indeed  conceded,  but  this 
concession  did  not  entirely  solve  the  problem.  King 
after  king,  who  desired  a  little  more  freedom  in  the 
making  of  laws  than  Parliamentary  restrictions  allowed, 
found  a  suggestion  in  the  tradition  of  the  powers  which 
king  and  Council  had  once  possessed,  and  tried  to 
galvanize  something  of  life  into  the  survivals  of  Council 
legislation  in  ordinances  and  proclamations,  as  he  tried 
to  escape  complete  financial  dependence  by  inventing 
new  forms  of  revenue.  Even  today  the  "order  in 
Council,"  though  now  made  under  strict  Parliamentary 
supervision,  has  a  wide  range  of  possibility.  We  easily 
remember  the  part  which  such  orders  have  played  in 
affecting  relations  between  England  and  the  United 
States,  and  a  modern  English  scholar  has  said  of  his 
country:  "the  extent  to  which  we  are  governed  at 
present  by  orders  which  hardly  come  within  the  direct 
cognizance  of  the  legislature  is  much  wider  than  most 
people  are  aware  of." 

In  the  third  particular,  in  securing  control  of  the 
policy  which  should  be  followed  by  the  government, 
Parliament  made  even  less  progress  during  the  four- 
teenth century  than  it  did  in  the  other  two  lines  of 


76  OUTLINE  SKETCH  OF  ENGLISH 

advance.  We  have  already  noticed  briefly  how  by  taking 
advantage  of  the  king's  financial  dependence  the 
foundation  was  laid  of  the  modern  practice  of  appro- 
priations, and  by  a  development  of  the  practice  such  a 
control  might  have  been  reached,  but  no  more  than  a 
beginning  was  made  in  this  way.  Not  long  after  the 
middle  of  the  century,  however,  another  process  was 
devised,  better  suited  to  medieval  conditions  and,  when 
put  into  use,  very  effective  in  checking  the  carrying  out 
of  an  anti-Parliamentary  policy.  It  may  indeed  be 
looked  at  as  wider  in  its  range  than  the  mere  control  of  a 
particular  governmental  policy  and  be  regarded  as  the 
best  of  the  medieval  attempts  to  find  institutional  ex- 
pression for  the  limited  monarchy,  of  the  attempts  to 
devise  institutional  forms  through  which  the  king  could 
be  controlled  without  the  danger  of  revolution  and  civil 
war.  Considered  in  this  way,  it  was  the  highest  and 
most  successful  institutional  expression  of  the  limited 
monarchy  until  the  most  recent  times,  so  successful 
indeed  that  in  theory  it  still  forms  a  part  of  the  Anglo- 
Saxon  constitution — the  process  of  impeachment. 

As  a  process  it  is  not  necessary  to  describe  impeach- 
ment since  such  a  description  forms  a  familiar  part 
of  the  constitution  of  the  United  States  into  which 
impeachment  passed  from  the  English  constitution.  In 
principle  the  process  rests  on  the  doctrine  of  ministerial 
responsibility  as  the  middle  ages  understood  it,  a  doc- 


CONSTITUTIONAL  HISTORY  77 

trine  which  came  to  be  expressed  in  the  maxim  "the 
king  can  do  no  wrong."  This  political  maxim  is  not, 
as  it  seems  to  be  at  first  sight,  the  corner-stone  of  an 
absolute  monarchy.  It  is  rather  one  of  the  foundation 
stones  on  which  the  limited  monarchy  was  built.  For 
it  does  not  assert  that  no  wrong  will  be  done  by  the 
government,  nor  that  anything  that  may  be  done  by 
the  government  is  right.  What  it  says  is  that  when 
wrong  is  done  by  the  government,  it  was  not  the  king 
who  did  it  but  his  minister.  As  was  said  by  Sir  Dudley 
Digges  in  opening  for  the  House  of  Commons  the  im- 
peachment of  the  duke  of  Buckingham  in  1626,  one  of 
the  first  steps  of  Parliament  against  the  royal  ideas 
of  Charles  I :  "  The  laws  of  England  have  taught  us 
that  kings  cannot  command  ill  or  unlawful  things.  And 
whatsoever  ill  events  succeed,  the  executioners  of  such 
things  must  answer  for  them." 

In  this  interpretation  of  the  impeachment  process  may 
be  seen  both  the  part  which  it  played  in  the  develop- 
ment of  the  constitution  and  the  way  in  which  it  fell 
into  line  with  earlier  attempts  to  give  constitutional 
expression  to  the  limited  monarchy.  If  the  king  were 
personally  held  to  a  direct  responsibility  for  his  acts, 
there  would  always  be  great  danger  of  civil  war.  For 
it  is  not  often  in  history  that  a  king  is  found  so  thor- 
oughly bad  that  no  party  is  left  that  will  rally  to  his 
defence.  But  a  minister  can  be  held  to  a  strict  respon- 


78  OUTLINE  SKETCH  OF  ENGLISH 

sibility  with  far  less  danger.  And  yet  when  the  minis- 
ters of  the  king  have  been  taught  that,  if  they  insist  upon 
carrying  out  his  policy  in  opposition  to  the  will  of 
Parliament,  they  will  be  held  to  a  strict  accountability 
for  their  acts,  a  very  serious  obstacle  has  been  placed 
in  the  way  of  an  irresponsible  and  arbitrary  monarch. 
The  practice  of  impeachment  rested  clearly  upon  the 
doctrine  of  ministerial  responsibility,  as  does  modern 
cabinet  government,  but  the  medieval  doctrine  was  so 
different  from  the  modern  in  idea  and  in  method  of 
enforcement  that  the  two  must  be  recognized  as  distinct 
in  character  and  in  origin,  as  will  be  shown  in  more 
detail  later.  The  modern  minister  is  not  responsible  to 
Parliament  in  form  at  all,  but  to  the  king.  The  respon- 
sibility which  he  is  actually  under  is  indirect  and  dis- 
guised. The  medieval  minister  was  responsible  directly 
and  immediately  to  Parliament.  The  impeachment 
process  was  a  criminal  trial.  The  lower  house  of 
Parliament,  the  House  of  Commons,  acting  as  an  accus- 
ing body,  drew  up  charges  against  the  minister  and 
brought  him  to  trial  upon  them  before  the  upper  house, 
the  House  of  Lords,  acting  as  a  court  of  law  in  con- 
tinuation of  the  judicial  function  of  the  old  great 
Council.  The  trial  might  end  in  acquitting  the  minister 
or  the  House  of  Lords  might  find  him  guilty  and  inflict 
upon  him  heavy  penalties  or  even  a  sentence  of  death. 
It  was  a  responsibility  terribly  direct  and  immediate, 


CONSTITUTIONAL  HISTORY  79 

as  if  Parliament  had  appointed  the  ministers  itself,  as 
medieval  Parliaments  did  in  some  cases.  Its  purpose 
and  effect  are,  however,  equally  clear.  It  was  the  final 

and  best  result  of  the  medieval  experimenting  to  devise 

i 

some  constitutional  form  which,  like  the  board  of  twenty- 
five  barons  in  Magna  Carta  or  the  commissions  created 
by  the  Provisions  of  Oxford,  should  be  able  to  hold  the 
king  to  a  real  responsibility  while  avoiding  as  far  as 
possible  the  danger  of  civil  war  and  revolution.  It  was 
because  the  result  reached  by  the  middle  ages  in  this 
direction  was  so  good,  that  it  passed  into  the  modern 
constitution,  where  it  is  really  an  obsolete  survival. 


CHAPTER  IV 

CONSTITUTIONAL   GOVERNMENT   AND   ROYAL 
REACTION 

Impeachment  is  the  sign  and  striking  evidence  of 
the  growth  of  Parliament  in  power  during  the  four- 
teenth century,  but  it  is  a  sign  of  far  more  than  appears 
on  the  surface  when  it  is  regarded  as  an  institution 
merely.  It  should  in  addition  be  considered  as  result, 
and  as  result  it  not  merely  brings  into  a  single  expres- 
sion the  advance  made  during  the  century,  but  it  also 
indicates  how  all  the  lines  of  progress  of  the  century, 
brought  to  a  focus,  became  the  vital  impulse  of  a  new 
progress  in  the  future. 

In  establishing  its  power  in  various  particulars — the 
financial  dependence  of  the  king,  the  legislative  depend- 
ence of  the  king,  the  dependence  of  the  king  at  least 
partially  in  matters  of  government  policy,  Parliament 
had  really  been  doing  one  greater  thing.  It  had  been 
enlarging  the  body  of  law  which  the  king  was  bound  to 
observe  as  that  had  been  stated  in  Magna  Carta.  It 
may  be  said  rather  that  it  had  been  transforming  it. 
Political  feudalism  no  longer  existed.  The  services  to 


CONSTITUTIONAL  HISTORY  81 

the  state,  for  whose  performance  it  had  once  been  neces- 
sary, were  now  better  got  in  other  ways.  Many  of  the 
rights  on  which  the  barons  had  once  insisted  in  Magna 
Carta  were  obsolete  and  forgotten.  The  baron  himself 
was  disappearing.  He  was  becoming  the  modern  noble 
to  whom  a  title  and  a  good  income  and  a  place  at  the 
king's  court  were  more  important  than  his  older  feudal 
independence.  But  the  fundamental  principle  of  Magna 
Carta  was  neither  obsolete  nor  forgotten.  At  no 
moment  in  all  the  progress  and  transformations  of  the 
past  had  it  been  lost  to  sight.  The  king  was  bound  to 
keep  the  laws  which  seemed  to  the  nation  at  any  stage 
of  its  advance  necessary  to  its  interest  and  fundamental 
statements  of  its  rights. 

In  more  specific  statement,  in  making  a  place  for  itself 
in  the  state  during  the  fourteenth  century  and  laying  the 
foundations  of  its  future  power,  Parliament  had  bound 
the  king  almost  completely  in  taxation,  a  little  less 
firmly  in  legislation,  and  slightly  in  the  control  of 
government  policy.  These  were  the  new  fundamental 
laws  of  the  state  which  took  the  place  of,  were  trans- 
formation of,  the  principles  of  feudalism  which  Magna 
Carta  had  formulated.  They  were  the  new  foundations 
of  the  constitution  by  which  the  king  was  limited,  in 
addition  to  some  surviving  principles  of  the  Great 
Charter  which  occupied,  however,  a  less  conspicuous 
place  in  public  law.  Inevitably  it  followed  that  Parlia- 


82  OUTLINE  SKETCH  OF  ENGLISH 

ment  by  establishing  these  limitations  became  the 
guardian  of  the  constitution  which  rested  upon  them, 
in  place  of  the  baronial  opposition  which  through  the 
whole  thirteenth  and  early  part  of  the  fourteenth  cen- 
turies had  performed  that  function.  This  change  was 
of  immense  importance  in  the  formation  of  the  limited 
monarchy.  In  place  of  the  unorganized,  short-sighted 
and  self-centered  opposition  of  the  barons,  so  often 
personal  in  character  and  to  which  a  continuity  of 
purpose  was  scarcely  possible,  nor  even  the  intelligent 
accumulation  of  precedent,  the  directing  of  the  advance 
passed  over  to  an  institution  whose  activity  was  never 
suspended,  which  allowed  nothing  that  had  been  gained 
to  be  forgotten  and  which  was  capable  of  continuous 
growth  and  adaptation.  The  process  of  impeachment 
as  resting  upon  the  principle  that  the  agents  of  the 
king's  policy  were  responsible  directly  to  Parliament, 
and  that  therefore  the  king  was  under  Parliamentary 
control,  is  the  institutional  expression  of  the  fact  that 
the  guardianship  of  the  constitution  was  in  the  hands 
of  Parliament.  From  this  time  on  the  formation  of  the 
limited  monarchy  went  on,  not  without  reaction,  but 
consistently  and  without  permanent  loss. 

In  describing  this  change,  I  have  not  intended  to 
imply  that  Parliament  was  conscious  that  it  had  taken 
this  place  or  that  it  understood  the  larger  significance 
of  its  own  position.  The  events  of  the  next  generation, 


CONSTITUTIONAL  HISTORY  83 

however,  were  of  a  sort  almost  to  give  us  the  right  to 
say  that  the  king  for  his  part  was  conscious  of  the  situa- 
tion, what  it  implied  for  the  future  of  the  royal  power, 
and  the  results  of  what  he  attempted  to  do  in  consequence 
certainly  advanced  Parliamentary  understanding.  The 
reign  of  Richard  II  began  with  a  minority  during 
which  the  practical  supremacy  of  Parliament  was 
evident  and  the  precedents  of  Edward  Ill's  reign  were 
confirmed.  Even  the  Council,  the  special  organ  of  the 
king's  activity,  was  almost  a  creature  of  the  Parliament. 
A  king  who  knew  anything  at  all  of  the  meaning  of 
monarchy  could  hardly  fail  to  appreciate  the  position 
in  which  Richard  found  himself  placed  when  he  reached 
his  majority.  In  another  direction  certain  facts  of 
these  and  the  following  years  showed  clearly  enough 
what  dangers  to  the  government  might  lie  in  factious 
combinations  of  nobles  supported  by  princes  of  the 
royal  blood.  It  is  impossible  for  us  to  say  from  any 
direct  evidence  which  we  have  that  Richard  learned  the 
lesson  which  this  twofold  situation  might  teach  a  king, 
and  that  he  determined  to  reestablish  the  personal  and 
unlimited  government  of  the  crown  which  his  ancestors 
had  possessed.  This  much,  however,  we  have  a  right 
to  say,  that  what  he  did  in  the  last  years  of  his  reign  is 
what  he  would  have  done  if  he  had  understood  this 
position  and  with  great  skill  formed  such  a  plan.  His 


84  OUTLINE  SKETCH  OF  ENGLISH 

acts  seem  consciously  and  definitely  shaped  to  carry  out 
such  a  purpose. 

Possibly  there  still  lingers  in  our  general  knowledge 
some  remembrance  of  the  tragedy  which  closed  the  reign 
of  Richard,  because  it  is  the  theme  of  the  first  of  the 
series  of  plays  in  which  Shakespeare  wrote  his  con- 
tinuous history  of  England  from  the  fall  of  Richard  II 
to  the  death  of  Richard  III.  But  to  Shakespeare  the 
tragedy  at  the  end  was  naturally  everything.  He 
shows  neither  interest  nor  knowledge  concerning  the 
issues  earlier  drawn  between  king  and  Parliament  which 
brought  the  tragedy  about.  The  historian  must  note 
that  Richard  attacked  at  the  same  time  Parliament  and 
the  powers  of  Parliament.  It  is  significant  of  his  per- 
ception of  the  supremacy  of  Parliament  that  he  felt 
compelled  to  use  it  to  accomplish  at  least  the  first  items 
of  his  programme.  To  make  sure  of  the  action  he 
desired,  he  seated  in  the  House  of  Commons  men  he 
could  rely  upon,  using  the  help  of  the  sheriffs  who  were 
the  returning  officers,  and  in  addition  he  overawed 
Parliament  by  troops  of  Welsh  archers  in  his  pay. 
From  such  a  Parliament  he  secured  the  grant  of  a 
revenue  for  life  and  a  limited  right  of  legislation :  only 
a  beginning  but  one  that  could  have  been  developed 
with  time  into  complete  legislative  independence.  He 
established  also  the  principle  that  members  of  Parlia- 
ment could  be  held  to  a  direct  responsibility  to  himself 


CONSTITUTIONAL  HISTORY  85 

for  their  words  and  acts  in  Parliament  and  severely 
punished  under  an  accusation  of  treason.  He  went  even 
farther  than  this  and  assumed  the  right  to  nullify  actual 
acts  of  Parliament  by  falsifying  the  records  or  by  the 
suspension  of  a  statute  by  prerogative  action. 

If  these  different  successes  of  the  king  be  considered 
together,  it  is  hard  to  avoid  the  conclusion  that  he  was 
acting  upon  a  definite  plan  and  it  is  easy  to  see  how 
little  of  the  constitution  would  be  left,  if  they  were 
made  permanent.  They  would  constitute  the  founda- 
tion stones  of  an  absolutism  as  complete  as  that  which 
Richelieu  afterwards  perfected  upon  the  same  founda- 
tions, just  then  beginning  to  be  laid  by  Charles  the  Wise 
on  the  other  side  of  the  channel.  The  last  three  years 
of  Richard's  reign  form  the  first  dangerous  crisis 
through  which  the  English  constitution  passed  because 
of  the  skilful  and  systematic  attempt  of  the  sovereign 
to  turn  back  the  tide  of  advance.  Happily  his  attack 
on  the  fundamental  laws  of  the  state  was  accompanied 
with  acts  of  personal  tyranny  which  furnished  the 
opposition  with  a  leader.  Under  Henry  of  Bolingbroke 
the  nation  rose  against  the  king  and  it  was  speedily 
discovered  that  Richard's  conduct  had  left  him  for  the 
moment  almost  without  supporters.  The  revolution  of 
1399  was  practically  bloodless. 

It  was  also  complete.  The  house  of  Lancaster  came 
to  the  throne  dependent  upon  the  support  of  the  nation 


86  OUTLINE  SKETCH  OF  ENGLISH 

for  the  possession  of  a  crown  won  by  revolution,  logi- 
cally pledged  to  recognize  the  rights  which  Parliament 
had  secured  during  the  fourteenth  century  and  to  allow 
the  full  exercise  of  the  powers  which  Richard  had 
attacked.  They  were  pledged  also  to  the  same  policy 
by  the  force  of  circumstances,  for  Henry  IV,  the 
product  of  the  revolution,  himself  in  constant  danger 
of  counter  revolutions,  was  too  dependent  upon  such 
support  as  he  could  win  to  adopt  a  policy  of  aggression 
in  any  direction,  or  to  antagonize  so  strong  an  insti- 
tution as  Parliament  had  become.  His  reign  seems  a 
very  mediocre  one,  despite  Henry's  undoubted  abilities, 
because  he  found  himself  obliged  in  everything  to  take 
a  moderate  and  middle  course.  His  son  and  successor, 
Henry  V,  the  Prince  Hal  of  Shakespeare,  felt  himself 
strong  enough  to  renew  the  war  with  France  and  made 
himself  a  great  name  by  the  victories  he  won,  but  his 
long  campaigns  kept  him  away  from  England  and  left 
the  government  there  necessarily  in  other  hands.  His 
premature  death  brought  his  son,  Henry  VI,  to  the 
throne  while  a  babe  in  arms  and  a  long  minority  and, 
after  he  came  of  age,  the  king's  mental  and  physical 
weakness,  tended  still  to  maintain  Parliament's  general 
control. 

For  this  long  period  of  sixty  years  Parliament's 
authority  was  unquestioned,  nor  did  the  Lancastrian 
kings  show  at  any  time  a  disposition  to  question  it. 


CONSTITUTIONAL  HISTORY  87 

Their  natural  inclination  seemed  to  be,  so  far  as  we  can 
judge  it,  to  rule  in  harmony  with  Parliament.  It  was 
a  period  of  unbroken  constitutional  government.  Start- 
lingly  and  prematurely  modern,  I  have  called  it  in 
another  place,  and  though  the  machinery  of  constitu- 
tional government  had  as  yet  been  worked  out  in  few 
details,  it  was  in  spirit  modern.  Parliament  seemed 
aware  of  the  security  of  its  position  and  busied  itself 
on  one  hand  with  perfecting  details  and  on  the  other 
with  strengthening  its  control.  It  used  the  king's 
Council  as  its  own  instrument,  and,  most  remarkable  of 
all,  we  seem  to  be  able  to  detect  the  faint  beginnings, 
amid  somewhat  similar  conditions,  of  that  change  in 
the  relations  between  Council  and  Parliament  out  of 
which,  in  more  modern  times,  the  English  cabinet  system 
grew.  But  even  Parliamentary  control  of  the  Council, 
through  which  the  daily  government  of  the  country 
was  carried  on,  could  not  prevent  the  rise  of  those 
factious  rivalries  among  the  great  men  of  the  day  which 
led  in  another  generation  directly  into  the  civil  Wars 
of  the  Roses. 

It  was  indeed  a  period  prematurely  modern.  It  was 
constitutional  not  because  the  constitution  was  solidly 
founded  and  firmly  fixed  and  fortified  in  possession  of 
the  government,  not  because  the  constitutional  way 
seemed  the  only  natural  and  normal  way  of  doing  things, 
but  rather  because  of  circumstances  somewhat  temporary 


88  OUTLINE  SKETCH  OF  ENGLISH 

in  character;  the  insecurity  of  the  king,  his  absence,  his 
infancy,  or  his  personal  weakness,  left  Parliament  really 
alone  the  strongest  factor  in  the  government.  It  was 
the  best  result  of  such  a  period  that  constitutional 
government  grew  to  seem  more  normal.  The  habits  of 
thought  and  action  then  formed  were  more  important 
than  the  precedents  established,  and  one  great  reason 
why  the  constitution  survived  the  next  age  was  that  in 
this  one  it  had  become  more  firmly  a  part  of  the  national 
life. 

What  conclusion  the  best  thought  of  the  time  had 
reached  about  the  place  of  the  king  in  the  government 
may  be  indicated  in  the  words  of  a  contemporary  student 
of  the  English  constitution,  which  are  "so  explicit  and 
weighty  that  no  writer  on  the  English  constitution  can 
be  excused  from  inserting"  them,  as  Hallam  says,  in 
the  third  part  of  his  chapter  on  the  English  constitution 
in  his  Europe  during  the  Middle  Ages.  Sir  John 
Fortescue,  who  had  been  chief  justice  of  England, 
had  had  his  training  and  almost  all  his  active  life 
in  the  Lancastrian  age.  In  his  book  In  Praise  of  the 
Laws  of  England,  written  early  in  the  reign  of  Edward 
IV,  he  said  of  the  king:  "He  can  neither  make  any 
alteration  or  change  in  the  laws  of  the  realm  without 
the  consent  of  his  subjects,  nor  burden  them  against 
their  wills  with  strange  impositions."  And  again: 
"As  the  head  of  the  body  natural  cannot  change  its 


CONSTITUTIONAL  HISTORY  89 

nerves  and  sinews,  cannot  deny  to  the  several  parts  their 
proper  energy,  their  due  proportion  and  aliment  of 
blood,  neither  can  a  king  who  is  the  head  of  the  body 
politic,  change  the  laws  thereof,  nor  take  away  from  the 
people  what  is  theirs  by  right,  against  their  consent. 
Thus  you  have  the  formal  institution  of  every  political 
kingdom,  from  whence  you  may  guess  at  the  power 
which  a  king  may  exercise  with  respect  to  the  laws  and 
the  subject.  For  he  is  appointed  to  protect  his  subjects 
in  their  lives,  properties  and  laws ;  for  this  very  end  and 
purpose  he  has  the  delegation  of  power  from  the  people 
and  he  has  no  just  claim  to  any  other  power  but  this." 
These  may  be  the  words  of  a  philosophical  student  of 
government,  but  there  can  be  no  doubt  that  in  essence 
Fortescue  was  right.  At  that  date  the  principle  had 
been  in  reality  established  that  the  royal  power  was  a 
delegation  from  the  people,  although  it  was  to  be  two 
hundred  years  longer  before  that  principle  could  be 
carried  out  in  the  practical  government  of  the  country. 
One  new  Parliamentary  right  which  the  revolution 
of  1399  went  a  long  way  towards  establishing  should 
not  be  passed  over — the  right  of  determining  the  suc- 
cession to  the  crown.  By  this  is  not  meant  the  larger 
and  more  important  right  of  deposing  a  king  who  could 
not  otherwise  be  controlled.  The  right  of  deposition 
had  been  made  in  a  sense  constitutional  by  Magna 
Carta,  as  the  foundation  upon  which  rested  the  smaller 


90  OUTLINE  SKETCH  OF  ENGLISH 

and  included  right  of  temporary  suspension  asserted 
in  clause  sixty-one.  That  right  of  temporary  suspension 
for  bad  conduct  had  been  exercised  by  the  great 
Council  in  1258  and  again  in  1310,  and  the  more  com- 
plete right  of  deposition  had  been  exercised  against 
Edward  II  in  1328.  But  more  than  this  was  done  in 
1399.  Parliament  assumed  the  right  to  pass  over  the 
line  marked  out  for  succession  by  the  principle  of 
primogeniture,  lately  established  in  English  law,  the 
principle  of  strict  hereditary  succession  by  blood,  and 
to  place  upon  the  throne  the  younger  line,  the  house  of 
Lancaster.  Logically  this  right  was  involved  in  the 
older  right  of  deposition,  but  its  exercise  in  this  form 
was  destined  in  the  immediately  following  centuries  to 
attract  to  itself  more  general  interest  and  to  be  more 
useful  to  Parliament  than  the  greater  right  from  which 
it  was  derived.  Indeed  as  early  as  1460  it  led  to  a  most 
significant  declaration  of  the  power  of  Parliament. 
When  the  duke  of  York  after  a  decisive  victory  over 
the  Lancastrians  in  the  field  unexpectedly  called  upon 
a  Yorkish  Parliament  to  recognize  his  better  right  to 
the  crown,  as  standing  for  the  elder  line,  the  House 
of  Lords  gave  as  one  of  its  reasons  for  refusing  his 
demand  the  fact  that  the  entailing  of  the  crown  upon 
the  house  of  Lancaster  by  act  of  Parliament  created  a 
better  title  to  the  throne  than  any  other  could  be. 
The  fifteenth  century  stands  in  sharp  contrast  to  the 


CONSTITUTIONAL  HISTORY  91 

fourteenth,  not  in  the  exercise  of  Parliamentary  power 
but  in  its  increase.  The  great  creative  advances 
possible  to  the  political  foresight  of  the  middle  ages 
had  been  made.  There  was  no  experience  of  constitu- 
tional government  in  the  past  to  which  the  leaders  of 
the  fifteenth  century  could  turn  for  guidance.  They 
could  have  no  ideal  of  a  perfected  limited  monarchy, 
institutionally  complete  in  all  its  parts,  which  they 
could  strive  to  reach  as  a  final  result,  nor  any  clear 
conception  of  the  future  dangers  to  their  work  from 
which  they  ought  to  guard  it.  In  all  the  stages  of  this 
historically  new  work  of  creating  government  by  the 
people,  it  was  the  practical  need  of  the  moment  which 
determined  what  was  done,  not  any  theoretical  concep- 
tion of  the  end  to  be  reached.  The  fifteenth  century 
was  satisfied  with  the  results  which  had  been  gained, 
and  felt  no  immediate  need  of  further  advance.  Since 
this  work  was  new  to  all  experience,  it  was  fortunate 
also  that  there  came  after  the  rapid  progress  of  the 
fourteenth  century  a  period  of  three  generations,  as 
medieval  generations  must  be  reckoned,  of  comparative 
quiet,  comparatively  stationary.  The  operation  of  con- 
stitutional government,  the  supremacy  of  Parliament, 
the  doing  of  all  sorts  of  things  by  Parliamentary  action, 
became  to  a  degree  in  so  long  a  period  things  of  habit, 
and  this  habit  of  Parliamentary  authority,  as  has  been 
said,  formed  a  solid  substratum  of  constitutional  right 


92  OUTLINE  SKETCH  OF  ENGLISH 

underlying    all    the    superficial    reaction    of    the    next 
century. 

And  so  Parliament  from  1399  to  1460,  carrying  on 
the  government  as  a  matter  of  course,  concerned  itself 
in  strengthening  its  position  not  in  large  things  but  in 
small  ones.  It  was  busy  about  the  establishment  of  the 
so-called  privileges  of  Parliament :  freedom  of  debate, 
which  perhaps  can  hardly  be  called  a  small  thing;  the 
freedom  of  members  from  arrest ;  the  right  of  the  House 
of  Commons  as  distinguished  from  the  upper  house  to 
originate  taxation,  to  determine  the  qualifications  of 
members,  and  to  discipline  and  punish  members  and 
disrespectful  outsiders;  the  regulation  of  the  right  of 
suffrage  in  the  counties;  the  extension  of  the  practice 
of  appropriations;  and  the  improvement  of  the  process 
of  legislation.  Comparatively  these  were  small  things, 
but  in  that  stage  of  progress  important.  As  with  the 
greater  advances  of  the  fourteenth  century,  not  all  of 
these  privileges  were  completely  established  at  once. 
Some  of  them,  like  freedom  of  debate,  were  called  in 
question  for  a  long  time.  But  a  substantial  beginning 
was  made  in  them  all  during  the  Lancastrian  period. 
In  comparison  with  these,  the  special  facts  in  which  the 
Parliamentary  control  of  the  Council  expressed  itself, 
which  seem  on  the  surface  the  most  striking  facts  of 
the  period,  are  of  minor  interest  because  they  did  not 
become  precedents  of  constitutional  importance.  The 


CONSTITUTIONAL  HISTORY  93 

responsibility  of  the  Council,  that  is  of  the  executive 
and  administrative  departments,  to  the  legislature,  had 
to  be  reestablished  at  a  later  time,  after  the  results  of 
the  Tudor  reaction  had  been  overcome,  and  it  was  then 
done  from  a  different  beginning  and  in  a  different  way. 
The  reaction  against  the  Lancastrian  constitutional 
monarchy  began  before  the  end  of  the  fifteenth  century. 
The  Wars  of  the  Roses,  which  were  at  first  only  a 
factious  rivalry  for  influence  in  the  government  under 
a  helpless  king  but  which  passed  soon  into  a  dynastic 
civil  war,  were  a  predisposing  influence.  The  political 
skill  and  determined  character  of  Edward  IV  and 
Richard  III  were  matched  by  no  leadership  in  oppo- 
sition which  had  any  understanding  of  constitutional 
principles  or  any  interest  in  maintaining  a  limited 
monarchy.  On  the  other  hand  the  kings  themselves 
seem  to  have  had  no  such  foresight  of  the  dangerous 
situation  into  which  arbitrary  kingship  had  been  drift- 
ing as  we  may  possibly  attribute  to  Richard  II.  They 
were  determined  to  be  the  most  powerful  force  in  the 
state  because  of  the  dangers  which  threatened  them  from 
insurrections  rather  than  because  of  those  which  threat- 
ened from  constitutional  progress.  They  began  some 
of  the  methods  of  a  practical  absolutism  which  were 
afterwards  carried  farther  by  the  Tudors,  but  with  no 
conscious  intention  of  founding  absolute  monarchy. 
They  packed  the  House  of  Commons  with  their  adher- 


94  OUTLINE  SKETCH  OF  ENGLISH 

ents;  they  kept  Parliament  from  meeting  during  long 
intervals  of  time  in  sharp  contrast  with  the  fourteenth 
century;  and  they  provided  themselves  with  an  inde- 
pendent revenue  at  least  partially  sufficient  for  their 
needs  by  means  of  forced  loans  and  forced  gifts, 
"benevolences"  they  called  them.  But  perhaps  it  was 
the  mere  accession  of  the  house  of  York  to  the  throne, 
emphasizing  the  right  of  strict  hereditary  succession  in 
the  teeth  of  a  statute,  which  was  the  most  severe  blow 
to  Parliamentary  supremacy  struck  at  the  time. 

As  part  of  a  resume  of  results  already  attained, 
Hallam  calls  attention  near  the  beginning  of  his  Con- 
stitutional History  of  England  to  certain  principles  of 
civil  liberty  which  at  the  end  of  the  fifteenth  century 
protected  the  individual  from  the  arbitrary  action  of 
the  government.  They  had  been  established  in  England 
in  the  common  law,  that  is,  in  private  rather  than  in 
public  law,  but  in  America  we  have  made  them  parts 
of  the  constitution.  He  says:  "No  man  could  be 
committed  to  prison  but  by  a  legal  warrant  specifying 
his  offence;  and  by  a  usage  nearly  tantamount  to  con- 
stitutional right,  he  must  be  speedily  brought  to  trial 
by  means  of  regular  sessions  of  gaol-delivery.  The  fact 
of  guilt  or  innocence  on  a  criminal  charge  was  deter- 
mined in  a  public  court,  and  in  the  county  where  the 
offence  was  alleged  to  have  occurred,  by  a  jury  of  twelve 
men,  from  whose  unanimous  verdict  no  appeal  could 


CONSTITUTIONAL  HISTORY  95 

be  made.  Civil  rights,  so  far  as  they  depended  on 
questions  of  fact,  were  subject  to  the  same  decision. 
The  officers  and  servants  of  the  crown,  violating  the 
personal  liberty  or  other  right  of  the  subject,  might  be 
sued  in  an  action  for  damages  to  be  assessed  by  a  jury, 
or,  in  some  cases,  were  liable  to  criminal  process;  nor 
could  they  plead  any  warrant  or  command  in  their 
justification,  not  even  the  direct  order  of  the  king." 


CHAPTER  V 
THE  TUDOR  STRONG  MONARCHY 

The  revolution  by  which  Richard  III,  the  last  of  the 
Yorkist  kings,  was  overthrown  and  the  house  of  Tudor 
established  on  the  throne  in  the  person  of  Henry  VII 
excited  little  interest  in  the  nation  at  large.  It  was  not 
a  constitutional  revolution  as  that  of  1399  had  been. 
At  the  moment  no  one  could  tell  that  it  was  not  another 
of  the  many  ups  and  downs  of  the  Wars  of  the  Roses, 
in  which  also  as  a  whole  the  nation  had  not  been  greatly 
concerned.  The  only  constitutional  principle  which  it 
could  be  cited  in  the  future  to  support  was  the  right 
of  Parliament  to  determine  the  succession  in  the  return 
to  the  younger  line,  which  it  then  decreed  at  the  expense 
of  the  elder.  But  this  principle  was  by  no  means  so 
clearly  asserted  as  in  1399  and  was  not  strengthened  by 
the  later  marriage  of  Henry  VII  with  the  heiress  of  the 
Yorkist  Edward  IV.  The  Tudors  came  to  the  throne 
as  the  result  of  no  national  movement  in  defence  of  the 
constitution  and  under  no  implied  pledge  to  respect  the 
powers  of  Parliament. 

Nor  was  the  general  situation  an  aid  to  constitutional 


CONSTITUTIONAL  HISTORY  97 

government.  It  was  a  new  and  stormy  age  on  which 
Europe  as  a  whole  was  then  entering,  the  transition  in 
political  history  from  medieval  to  modern  times.  The 
modern  nations  had  assumed  something  like  their  final 
form.  France  had  acquired,  not  quite  its  final  eastern 
boundary,  but  its  general  geographical  outlines;  the 
great  feudal  baronies,  earlier  independent,  had  been 
overcome  or  absorbed;  the  government  of  the  state  had 
been  centralized  in  the  sovereign,  not  with  the  perfection 
of  detail  to  be  obtained  in  the  seventeenth  century,  but 
to  the  exclusion  of  any  rival  powers.  In  the  Spanish 
peninsula  the  chief  kingdoms  which  had  been  so  long 
pushing  back  the  Moors  were  now  brought  under  one 
rule  by  the  marriage  of  Ferdinand  and  Isabella,  and  by 
a  sharper  and  quicker  process  than  in  France,  largely 
of  force,  an  absolutism  practically  as  effective  as  the 
French  had  been  established.  The  house  of  Austria, 
which  had  added  to  its  southeastern  dominions  the  most 
of  the  great  Rhenish  combination,  the  patchwork  which 
had  been  formed  by  the  ambitions  of  the  dukes  of 
Burgundy,  was  just  entering  upon  the  great  period  of 
its  history. 

New  ambitions  were  rising  before  these  new  states 
soon  to  be  the  first  "great  powers"  of  modern  diplo- 
macy, which  was  then  itself  also  new.  Medieval  condi- 
tions had  passed  away.  In  the  immediately  preceding 
centuries  the  pressing  problem  before  every  government 


98  OUTLINE  SKETCH  OF  ENGLISH 

was  national  or  internal  consolidation  and  centralization. 
If  a  ruler  of  the  later  middle  ages  sought  to  build  up 
an  interstate  alliance,  in  the  great  majority  of  cases  his 
purpose  was  not  dominion  outside  the  boundaries  he 
was  striving  to  establish,  but  he  hoped  by  foreign  help 
more  easily  to  overcome  some  difficulty  within  those 
boundaries.  Those  difficulties  were  now  so  far  overcome 
in  these  great  states  that  the  ruler  could  give  his  chief 
interest  to  other  things.  Then  opened  out  a  new  vision 
of  empire,  not  now  of  a  Holy  Roman  Empire  co- 
extensive with  Christendom  and  founded  in  the  divine 
plan  for  human  history.  This  conception  was  not  a 
part  of  fifteenth-century  plans,  and  the  word  empire 
took  on  then  a  new  meaning.  It  began  to  mean  the 
dominion  and  power  of  a  state  outside  its  national 
boundary  lines;  in  a  few  cases  perhaps,  it  included  the 
annexation  of  other  states  or  parts  of  states,  but  more 
truly  it  meant  the  conception  and  inauguration  of  the 
struggle  for  the  domination  of  Europe  by  a  single  state. 
This  has  been  the  conception,  broadened  later  into  an 
idea  of  world  domination,  which  has  brought  on  all  the 
great  wars  of  European  history  since  that  date,  and  we 
can  only  hope  that  in  the  great  world  war  of  1914  we 
are  seeing  its  last  stage. 

In  this  first  phase  of  modern  international  rivalry, 
the  great  contestants  were  France  and  Spain.  Between 
them  England  was  a  little  state  hardly  sufficient  to 


CONSTITUTIONAL  HISTORY  99 

furnish  a  balance  of  power;  but  she  had  well  in  hand 
resources  somewhat  out  of  proportion  to  her  size,  and 
her  geographical  position  then  as  always  gave  her  a 
peculiar  security.  But  it  was  a  dangerous  age  for  a 
small  state.  The  great  powers  of  the  continent  were 
eager  to  use  her  for  their  own  ends,  and  it  was  only  by 
the  most  skilful  management  that  she  could  avoid 
entangling  her  fortunes  and  fate  in  one  alliance  or 
another.  The  danger  became  far  more  acute  when  the 
religious  revolution  of  the  sixteenth  century  complicated 
the  situation,  pushed  international  rivalries  to  extremes 
and  introduced  new  elements  of  fanaticism  and  hatred. 
The  danger  then  came  to  be  for  England  not  merely 
one  of  foreign  entanglements  but  one  of  domestic  civil 
war  and  revolution  as  well. 

It  is  no  wonder  that  in  such  an  age  with  the  tacit 
consent  of  the  nation  the  constitution,  the  limited  mon- 
archy, was  practically  suspended.  The  wonder  is  that 
it  escaped  destruction.  The  English  nation  had  just 
passed  out  of  an  age  in  which  the  horrors  of  civil  war 
had  been  made  very  real  and  a  strong  monarchy  had 
been  found  something  of  a  relief.  It  had  passed  into 
an  age  in  which  the  general  atmosphere  of  Europe  was 
absolutist,  and  in  which  foreign  and  domestic  problems 
seemed  to  demand  concentration  of  national  will  and 
a  single  control  of  national  policy  and  resources.  Clear- 
sighted statesmanship  might  easily  justify  a  return  to 


100  OUTLINE  SKETCH  OF  ENGLISH 

practical  absolutism  with  the  general  support  of  the 
nation. 

We  should  have,  however,  a  wrong  impression  of  the 
sixteenth  century  if  we  regarded  it  merely  as  an  age 
in  which  the  growth  of  the  constitution  was  suspended 
and  an  absolutist  reaction  had  full  sway.  It  was  in 
two  particulars  at  least  something  quite  different  from 
that.  In  the  first  place  in  important  respects  the  con- 
stitution continued  in  operation.  The  Tudor  sovereign 
found  it  easier  to  get  what  he  wanted  done  with  the  help 
of  Parliament  and  by  the  forms  of  the  constitution  than 
to  do  away  with  Parliament  and  build  up  instead  an 
institutional  absolutism.  During  some  part  of  the  time 
it  was  really  true  that  what  the  king  wanted  the  nation 
also  wanted;  sometimes  Parliament  was  controlled  and 
induced  to  do  what  perhaps  the  majority  of  the  nation 
did  not  sanction;  at  other  times,  especially  towards  the 
beginning  of  the  period,  Parliament  was  thrown  some- 
what into  the  background  and  long  intervals  were 
allowed  to  pass  between  its  sessions,  long  at  least  as 
compared  with  the  greater  part  of  the  period  since  the 
accession  of  Edward  III;  and  in  the  opposite  direction 
occasionally  Parliament  asserted  a  will  of  its  own  and 
refused  to  be  led  by  the  king,  though  not  usually  in 
large  matters.  But  under  all  these  varying  conditions 
Parliament  was  used.  It  was  the  legislating,  author- 
izing, creative  instrument.  The  use  which  was  made 


CONSTITUTIONAL  HISTORY  101 

of  the  constitution  was  no  doubt  the  use  of  forms  from 
which  the  spirit  had  departed.  The  forms  were  used 
to  carry  out  the  sovereign's  will,  not  to  limit  it  or  to 
carry  out  a  will  in  opposition  to  his.  But,  it  must  be 
emphasized,  the  forms  were  used.  The  constitution  in 
the  matter  of  Parliamentary  powers  and  functions 
at  least  was  kept  in  operation.  Nothing  was  lost  or 
forgotten  which  had  been  gained.  Everything  was 
ready  to  be  filled  again  with  the  spirit  of  a  truly  con- 
stitutional monarchy  when  conditions  should  so  change 
that  the  struggle  with  the  king,  which  would  be  neces- 
sary, could  be  entered  upon  without  national  danger. 

The  second  particular  in  which  the  Tudor  age  may 
be  seen  to  be  not  one  of  mere  reaction  was  given  its 
peculiar  character,  and  indeed  was  rendered  possible, 
by  this  use  of  constitutional  forms  to  carry  out  the 
king's  will.  Briefly  and  in  general  form  the  fact  may 
be  so  stated:  It  was  the  positive  work  of  the  sixteenth 
century  to  bring  the  national  church  under  the  same 
degree  of  Parliamentary  control  which  had  been  at  that 
date  established  over  the  monarchy.  The  medieval 
church  withdrew  from  the  government  of  the  state  and 
kept  within  its  own  sphere  a  larger  share  of  the  public 
life  of  the  community  than  we  should  think  likely  from 
the  position  of  any  modern  church.  Large  fields  of 
law,  wills  and  inheritance,  marriage  and  divorce,  were 
its  exclusive  province.  Some  administrative  functions 


102  OUTLINE  SKETCH  OF  ENGLISH 

of  the  modern  state,  like  the  care  of  the  poor,  were  in 
its  hands.  The  Papacy  was  a  great  international  state 
with  all  the  organization  and  machinery  of  a  political 
government.  To  its  capital  went  up  from  all  the 
countries  of  Europe  a  constant  stream  of  reports, 
appeals,  and  taxes,  and  an  equal  stream  came  down  of 
orders,  commissions,  and  judicial  decisions.  In  some 
respects  the  Papacy  was  more  than  an  international 
state  for  it  assumed  to  represent  the  divine  government 
more  directly  and  to  speak  with  a  higher  authority  than 
any  merely  political  state.  England  was  in  a  few 
matters  in  a  somewhat  more  independent  position  than 
most  states  of  the  time,  but  still  in  a  large  part  of  its 
public  life  it  was  dependent  not  upon  its  own  govern- 
ment but  upon  a  foreign  government. 

This  dependence  upon  a  foreign  government  it  was, 
which  was  the  first  thing  to  be  broken  in  the  sixteenth 
century.  With  the  religious  past  of  the  church  no  break 
was  then  intended,  but  the  government  of  the  state 
assumed  full  control  of  all  public  interests  that  had 
formerly  fallen  to  the  charge  of  the  Papacy  and  with 
them  it  assumed  governmental  control  of  the  church 
itself.  This  was  in  itself  a  revolution,  and  it  drew 
logically  and  inevitably  a  larger  revolution  in  its  train, 
but  the  larger  revolution,  the  religious  revolution,  it 
does  not  belong  to  us  to  consider.  Nor  is  it  important 
for  us  to  know  how  far  personal  desires  of  King 


CONSTITUTIONAL  HISTORY  103 

Henry  VIII  in  seeking  a  divorce  from  Catherine  of 
Aragon,  or  wise  statesmanship  in  fear  of  a  doubtful 
succession,  brought  the  result  about.  What  is  important 
for  our  subject  is  the  fact  that  this  great  political 
change,  this  revolution,  was  accomplished  by  act  of 
Parliament.  By  a  series  of  great  statutes  adopted  in 
successive  sessions  of  the  Parliament  of  1529,  which 
remained  in  existence  for  seven  years,  one  bond  after 
another  which  bound  England  to  the  government  of  the 
pope  was  broken  and  the  king  put  in  his  place  as 
governor  of  the  church.  Even  considered  no  further 
than  this,  these  acts  were  an  extraordinary  exercise  of 
Parliamentary  power,  but  they  go  much  farther.  In 
them  was  laid  the  foundation  of  future  Parliamentary 
control  of  ecclesiastical  matters  which  has  been  exercised 
in  the  last  hundred  years  in  ways  that  would  have 
seemed  drastic  in  the  extreme  even  to  the  revolutionists 
of  the  sixteenth  century.  And  more  than  this  even: 
that  the  king  should  have  asked  the  sanction  and  secured 
the  authority  of  Parliament  for  changes  on  which  his 
heart  was  so  deeply  set  was  not  merely  a  striking  recog- 
nition of  the  position  of  Parliament,  but  a  precedent 
of  creative  value  for  the  future. 

This  ecclesiastical  revolution  was  a  great  forward 
move  in  bringing  the  entire  round  of  public  affairs 
under  national  control,  and  when  we  take  it  into  account, 
it  is  no  longer  possible  to  say  that  the  sixteenth  century 


104  OUTLINE  SKETCH  OF  ENGLISH 

was  an  age  when  the  growth  of  the  constitution  was 
suspended.  In  comparison  with  this  advance,  some 
improvement  in  executive  and  administrative  machinery, 
some  increase  in  the  activity  of  the  Council,  not  now 
under  Parliamentary  control  but  directly  representing 
the  sovereign,  are  of  minor  importance.  The  great 
thing  is  that  the  powers  which  Parliament  had  gathered 
into  its  hands  in  nearly  two  centuries  of  earlier  growth 
had  not  been  dropped,  but  had  rather  been  confirmed 
and  enlarged  in  its  possession,  as  marking  out  its  definite 
and  secure  function  in  the  state.  It  was  to  Parliament 
that  the  king  turned  as  if  to  the  source  of  final  authority 
and  sanction  in  his  revolutionary  reorganization  of  the 
state.  New  precedents  of  far-reaching  importance  had 
been  established  and  all  was  ready,  when  conditions 
should  become  more  favorable,  for  the  reconstruction  of 
a  constitutional  limited  monarchy  upon  a  broader  and 
more  solid  foundation  than  ever. 

Nor  is  what  has  been  so  far  said  a  complete  statement 
of  the  constitutional  meaning  of  the  sixteenth  century 
in  English  history.  The  economic  and  social  historian 
points  out  also  a  condition  of  things  which  the  historian 
of  constitutional  development  is  bound  to  regard.  The 
constitutional  monarchy  of  the  fifteenth  century  was 
premature  in  one  way  because  as  yet  there  was  no  nation 
in  the  modern  sense  prepared  by  political  discipline  and 
social  advancement  to  work  in  its  own  interests  the 


CONSTITUTIONAL  HISTORY  105 

constitutional  machinery  which  had  been  so  rapidly 
built  up  since  the  meeting  of  the  Parliament  of  1295. 
The  baronage  was  the  controlling  power  in  English 
political  life  during  the  long  reign  of  Henry  VI,  and 
the  baronage  of  the  fifteenth  century  was  far  more 
interested  in  its  own  factious  ambitions  than  in  Parlia- 
ment or  nation.  From  1455  to  1485  the  great  fact  in 
English  history  seems  on  the  surface  to  be  the  Wars 
of  the  Roses;  but  that  was  a  war  of  the  baronage,  not 
of  the  people,  and  in  spite  of  continuous  civil  war  the 
economic  and  social  development  of  the  country  at  large 
was  going  rapidly  forward.  It  needed  the  strong 
absolutism  of  the  Tudors  to  bring  the  nobles  and  their 
private  armies  into  subjection  to  the  law  and  reestablish 
an  orderly  public  life. 

The  relentless  vigor  with  which  Henry  VII  accom- 
plished this  work  established  his  throne,  and  for  a 
hundred  years  after  Bosworth  Field  the  nation  was  so 
wrapt  up  in  the  economic  revolution,  the  commercial 
progress,  and  the  consequent  social  changes  that  were 
going  on,  that  it  stood  ready  to  pay  any  price  which 
their  sovereigns  demanded  for  the  peace  they  main- 
tained. As  a  result  before  the  end  of  Elizabeth's  reign 
a  community  life  had  come  into  being  which  had  no 
existence  in  1450.  The  nation,  conscious  of  its  organic 
life  and  power,  able  to  say  ''the  people"  in  something 
like  the  modern  sense,  was  ready  not  merely  to  work 


106  OUTLINE  SKETCH  OF  ENGLISH 

in  its  own  interests  the  constitutional  machinery  of  the 
fifteenth  century  but  to  demand  in  addition  all  which 
was  logically  implied  in  it  but  never  before  understood. 
In  the  Tudor  age  also  the  constant  employment  of  Par- 
liament by  the  policy  of  the  crown  in  legislation  on 
matters  of  grave  importance  gave  it  an  acquired  knowl- 
edge of  practical  government  greater  than  it  had  ever 
before  possessed.  The  nation  also  had  been  politically 
disciplined  and  developed  especially  by  the  keenness  of 
its  interest  in  religious  questions  and  trained  to  con- 
sider with  care  the  rights  and  duties  of  government. 
The  sixteenth  .century  was  an  age  of  apprenticeship  in 
the  use  of  the  constitution  and  in  the  practical  operation 
of  government,  which  shows  its  result  clearly  in  the 
acquired  knowledge  and  skill  of  the  seventeenth. 

The  conditions  which  had  given  character  to  the  Tudor 
age  began  to  change  before  the  death  of  Elizabeth. 
The  execution  of  Mary  Stuart  and  the  successful 
defence  against  the  threats  of  Spain  gave  something  of 
security  against  both  domestic  and  foreign  danger, 
though  the  nation  was  not  fully  conscious  of  how  great 
a  change  in  these  respects  had  really  taken  place.  But 
Parliament  began  towards  the  end  of  the  century  to 
be  somewhat  restless;  to  show  an  inclination  to  greater 
independence,  and  a  disposition  to  be  more  critical  of 
royal  methods.  There  was,  however,  no  real  inter- 
ference with  Elizabeth's  action  which  can  be  said  to 


CONSTITUTIONAL  HISTORY  107 

have  amounted  to  a  matter  of  principle.  It  was  only 
that  all  things  were  ready  for  a  new  age  and,  if  Elizabeth 
herself  with  all  her  political  skill  could  have  continued 
to  reign  for  another  twenty  years,  it  is  not  likely  that 
she  could  have  repressed  the  opposition  that  was  form- 
ing. As  the  history  actually  went,  it  was  reserved  for 
a  new  dynasty  to  raise  for  the  first  time  in  English 
history  a  square  issue  between  two  types  of  monarchy 
and  two  types  of  constitution. 


CHAPTER  VI 
PARLIAMENT  VERSUS  THE  KING 

James  VI  of  Scotland  began  to  reign  when  a  babe  in 
arms  and  could  never  remember  a  time  when  he  had  not 
been  a  king.  He  was  something  of  a  student  and  he 
read,  not  without  a  natural  inclination  to  believe, 
current  philosophical  arguments  in  favor  of  the  divine 
right  of  kings,  and  even  restated  them  in  a  book  of  his 
own  writing.  He  was  the  king  of  a  poor  country,  but 
he  knew  himself  heir  to  the  English  crown  and  could 
look  forward  with  pleasant  anticipation  to  its  wealthier 
resources  and  to  the  headship  of  a  liberal  and  aristo- 
cratic church  in  place  of  the  hard  and  narrow  republi- 
canism of  the  Scotch  Presbyterians.  He  knew  the 
history  of  the  Tudor  monarchy  and  Elizabeth's  methods 
of  rule  and  her  overbearing  ways  of  dealing  with  indi- 
vidual opposition.  He  knew  also  that  his  right  to  the 
throne  was  shadowed  by  the  provision  for  the  succession 
which  Henry  VIII  had  made  under  the  authority  of 
Parliament,  by  which  his  own  elder  line  had  been  post- 
poned in  the  inheritance  to  the  younger  line  of  the 
descendants  of  Henry  VII.  But  he  knew  too,  when  he 


CONSTITUTIONAL  HISTORY  109 

came  to  the  throne  with  the  sanction  of  the  nation  in 
the  teeth  of  this  arrangement,  that  the  principle  of 
succession  by  direct  descent,  the  principle  of  divine 
right,  had  made  no  small  gain  over  the  principle  of 
Parliamentary  authority.  It  is  not  at  all  strange  that 
James  became  king  of  England  with  the  determination 
to  go  on  with  the  practical  absolutism  which  the  Tudors 
had  exercised  and  indeed  with  clearer  theoretical  ideas 
than  they  had  had  of  monarchy  as  the  natural  govern- 
ment intended  for  mankind  and  of  his  own  right  as  the 
particular  monarch  divinely  selected. 

Over  against  the  determination  of  the  king  was  the 
determination  which  had  been  slowly  growing  in  Parlia- 
ment for  some  years.  It  would  probably  be  going  too 
far  to  say  that  this  was  a  conscious  determination  that 
the  absolutism  of  the  Tudors  should  come  to  an  end. 
It  was  rather  a  determination  that  the  king  should  be 
held  to  the  law  where  law  existed.  The  particular  events 
in  which  this  determination  of  Parliament  expressed 
itself  were  so  entirely  shaped  by  the  action  of  the  king, 
Parliament  came  so  slowly,  as  the  years  of  the  seven- 
teenth century  went  on,  to  an  understanding  of  what 
its  opposition  meant  as  an  interpretation  of  the  consti- 
tution and  an  assertion  of  the  position  of  Parliament 
in  the  state,  that  it  is  hardly  possible  to  say  that  it  began 
the  conflict  with  the  crown  with  any  definite  plan,  or 
any  foresight  of  the  result  for  which  it  ought  to  strive. 


110  OUTLINE  SKETCH  OF  ENGLISH 

The  practical  situation  created  was,  however,  the  same 
as  if  it  had  been  designed.  A  square  issue  was  joined 
between  a  king  determined  to  go  on  with  a  virtual 
absolutism  and  a  Parliament  determined  that  the  king 
should  be  limited  by  the  law. 

This  issue  had  never  before  been  joined  in  English 
history.  Since  the  working  out  of  the  limited  monarchy 
and  the  establishment  of  its  principles  in  1399,  these 
two  interpretations  of  the  constitution  had  never  entered 
the  field  together.  Each  in  turn  had  had  possession  for  a 
long  period,  and  government  had  been  carried  on  accord- 
ing to  it  with  no  serious  interruption  from  the  other. 
The  Lancastrian  period  was  in  fundamental  principles, 
though  these  had  not  been  worked  out  in  all  details,  an 
age  of  constitutional  monarchy.  The  Yorkist  and  Tudor 
periods  formed  an  age  of  practical  absolutism,  though 
an  absolutism  which  for  its  own  convenience  made  use 
of  some  of  the  machinery  of  a  constitutional  monarchy 
and  in  so  doing  strengthened  and  confirmed  it.  In  this 
most  important  respect,  the  joining  of  issues  between 
a  traditionally  strong  royal  power  and  a  Parliament 
strong  in  accumulated  rights  and  privileges,  the  acces- 
sion of  James  I  opened  a  new  epoch  in  the  history  of 
England. 

The  great  practical  question  to  be  solved  was :  Would 
it  be  possible  to  make  these  two  conceptions  of  govern- 
ment work  peaceably  together?  "Would  it  be  possible 


CONSTITUTIONAL  HISTORY  111 

in  practice  to  mark  off  a  boundary  line  between  the 

M 

king's  prerogative  action  and  those  things  in  which  he 
must  allow  Parliament  to  be  supreme?  Was  any  com- 
promise between  these  two" powers  in  the  state  possible? 
Was  not  the  real  question  which  was  involved  in  the 
rivalry  between  them  the  question  of  the  ultimate 
political  authority  in  the  state  of  which  there  could  be 
in  the  nature  of  the  case  but  one?  Somewhere  in  every*" 
state  there  must  reside  a  power  of  making  decisions 
from  which  there  can  be  no  appeal ;  a  final  authority  to 
which  in  the  last  stage  of  discussion  every  great  question 
must  be  referred  and  whose  answer  will  at  once  be  seen 
to  end  all  controversy.  This  ultimate  authority  in  any 
state  is  the  sovereign  authority  whether  it  be  a  sovereign 
monarch  or  a  sovereign  people,  and  the  question  where 
does  sovereignty  reside  in  any  given  state  is  the  question 
where  is  to  be  found  the  power  of,  making  decisions 
which  we  know  no  other  power  can  call  in  question. 
In  the  conflict  between  the  king  and  Parliament  in  the 
seventeenth  century  in  England  this  was  the  question 
really  at  issue  and  really  decided.  Slowly  growing 
more  and  more  clear  through  the  cloud  of  special  issues, 
forced  by  progressive  dispute  and  argument  more  and 
more  definitely  into  the  foreground,  the  great  question, 
where  does  political  sovereignty  reside  in  the  English 
state,  what  is  the  ultimate  source  of  all  authority, 
though  it  was  never  distinctly  formulated  nor  answered 


112  OUTLINE  SKETCH  OF  ENGLISH 

in  specific  words,  was  in  the  end  really  answered  by  the 
facts,  by  the  actual  situation  left  as  the  result  of  the 
struggle. 

The  joining  and  the  settlement  of  this  issue  make 
the  seventeenth  century  like  the  fourteenth  century  a 
great  creative  age  in  English  constitutional  history, 
creative  not  of  institutions  nor  of  constitutional  pro- 
cedure, but  of  meaning  and  interpretation  fixed  beyond 
future  question.  If  we  say  that  by  1399  the  English 
constitution  had  been  brought  into  existence  so  far  as 
its  fundamental  principles  are  concerned,  we  have  by 
no  means  said  that  the  work  of  making  the  constitution 
was  completed.  There  was  much  of  a  creative  sort  still 
to  be  done.  Most  important  work  still  remained  in 
seeing  that  these  principles  were  consistently  carried 
out  in  all  the  details  of  government.  The  importance 
of  this  work  may  be  seen  in  saying  that  it  was  especially 
to  be  done  in  the  control  of  national  finance,  in  making 
the  judiciary  independent  of  executive  interference,  and 
in  the  directing  of  foreign  policy — this  last  an  item  in 
which  the  work  is  perhaps  not  yet  complete.  Much  had 
still  to  be  done  in  devising  machinery  for  the  operation 
of  practical  government  according  to  these  principles, 
and  this  in  its  chief  instance  has  given  us  the  English 
system  of  government  by  a  cabinet  of  responsible  min- 
isters. And  perhaps  most  broadly  fundamental  of  all, 
much  had  still  to  be  done  in  ascertaining  what  these 


CONSTITUTIONAL  HISTORY  113 

principles  logically  implied  as  to  the  nature  of  govern- 
ment, the  source  of  its  powers,  and  the  seat  of  sover- 
eignty in  the  state.  This  last  was  the  work  of  the 
seventeenth  century  and  it  was  truly  creative  although 
a  work  of  interpretation. 

The  work  of  the  seventeenth  century  was  creative 
also  not  merely  in  the  general  result  to  which  it  was  to 
lead  but  also  in  many  details  by  the  way.  Seventeenth- 
century  England  was  deeply  interested  in  its  past 
history,  and  the  leaders  on  both  sides  of  the  conflict 
made  an  appeal  to  precedent  hardly  equaled  in  any 
other  age.  But  it  must  be  admitted  that  precedents  in 
favor  of  the  claims  of  Parliament  were  many  times 
interpreted  and  urged  in  the  light  of  what  they  logically 
implied  rather  than  of  what  they  originally  meant. 
The  king  also  more  than  once  asserted  that  he  possessed 
a  general  right  of  action  on  the  basis  of  precedents 
which  related  only  to  a  much  more  limited  range  of 
cases,  as  in  the  instance  of  the  so-called  impositions,  a 
supertax  added  by  proclamation  to  the  customs  duties 
fixed  by  law.  Impositions  indeed  had  been  added  in 
this  way  to  the  legal  duties  by  earlier  kings  but  always 
for  special  administrative  purposes,  not  for  raising 
revenue,  and  in  justifying  his  use  of  the  right  by  the 
earlier  precedents  the  king  was  certainly  carrying  them 
beyond  their  legitimate  application.  The  case  is  typical 


114  OUTLINE  SKETCH  OF  ENGLISH 

of  the  kind  of  legal  justification  asserted  for  many  other 
things  done  by  the  Stuarts  during  the  century. 

On  the  whole,  however,  it  must  be  said  that  history- 
was  with  the  king.  The  stretching  of  precedent  at  that 
time  which  history  finds  the  most  unwarranted  into 
something  which  it  did  not  originally  mean,  though 
perhaps  logically  implied,  was  on  the  side  of  Parliament. 
The  seventeenth  century  is  for  instance  the  great  age  of 
the  perfection  of  the  writ  of  Habeas  Corpus  as  the 
means  of  securing  the  citizen  against  arbitrary  executive 
action.  But  Parliament  began  the  struggle  to  obtain 
this  result,  in  the  dispute  which  led  to  the  Petition  of 
Right  of  1628,  with  the  assertion  that  the  most  of  what 
it  was  to  gain  in  the  end  was  already  historically  its 
rightful  possession.  But  however  clearly  history  must 
condemn  the  literal  form  such  claims  assumed,  the  fact, 
which  was  in  truth  the  essential  fact,  should  not  be 
overlooked,  that  the  extended  meaning  which  Parliament 
gave  to  precedents  was  really  logically  involved  in  them. 
Habeas  Corpus  as  it  existed  before  1628  did  logically 
imply  what  Parliament  asserted  it  had  meant,  as  a  means 
of  defending  the  individual  against  the  arbitrary  action 
of  the  executive,  though  it  may  never  have  been  actually 
so  used. 

What  Parliament  was  really  doing  through  all  the 
faulty  history  it  employed,  was  to  apply  logically  in 
new  ways,  to  new  details,  in  further  extensions,  the 


CONSTITUTIONAL  HISTORY  115 

fundamental  principles  which  the  past  had  established. 
The  struggle  between  Parliament  and  the  Stuart  kings 
was  the  process  through  which  the  nation  was  learning 
to  understand  what  these  principles  really  implied  for 
the  whole  constitution  of  the  state.  Indeed  the  keenness 
with  which  the  opposition  of  the  seventeenth  century 
pressed  to  their  logical  limit  past  precedents  against  the 
king,  often  to  a  meaning  which  the  makers  of  the  prece- 
dent would  not  have  recognized  as  their  own,  leads  us 
to  suspect  that  during  the  long  interval  of  the  absolutist 
reaction,  there  had  already  formed,  unconsciously  and 
beneath  the  surface  no  doubt,  a  clearer  conception  than 
ever  before  of  what  the  constitution  was  and  what  it 
might  logically  involve;  that  the  sixteenth  century  had 
in  this  way  really  laid  down  a  solid  foundation  for  later 
advance  on  which  the  seventeenth  century  was  building. 
Against  extensions  of  this  sort,  if  they  be  really 
logical,  history  can  urge  no  objection.  The  historical 
argument  is  never  of  any  validity  against  the  results 
to  which  the  living  process  of  a  nation's  growth  has 
brought  it.  However  far  they  may  go  beyond  the  begin- 
nings the  past  has  made,  if  they  are  the  genuine  results 
of  national  life,  they  have  a  rightfulness  of  their  own 
which  history  cannot  question.  This  is  what  we  must 
say  of  the  main  things  which  Parliament  was  striving 
to  obtain  in  the  seventeenth  century.  They  were  new 
claims  in  form,  but  they  were  logical  applications  of 


116  OUTLINE  SKETCH  OF  ENGLISH 

established  principles,  and  the  time  had  now  come  when 
it  was  necessary  that  they  should  be  made  if  the  English 
constitution  was  not  to  cease  to  grow. 

Almost  immediately  after  his  accession  James  I  found 
himself  face  to  face  with  law  by  which  he  was  bound, 
with  rights  and  privileges  of  a  political  sort  which  he 
could  not  change.  In  summoning  his  first  Parliament 
he  undertook  to  rule  that  certain  classes  of  persons  of 
doubtful  character  should  not  be  elected  to  the  House 
of  Commons  and  to  assign  to  Chancery  the  function  of 
deciding  whether  his  prescription  had  been  complied 
with  in  individual  cases  or  not.  This  would  be  to  de- 
prive the  House  of  Commons  of  the  right  to  decide  upon 
the  qualifications  of  its  own  members  and  upon  disputed 
election  cases.  A  conflict  immediately  arose  between 
the  House  and  the  king  over  the  matter,  in  the  course 
of  which  the  king  asserted  that  the  House  "derived  all 
matters  of  privilege  from  him  and  by  his  grant,"  and 
the  House  in  a  formal  defence  of  its  position  declared 
that  "our  privileges  and  liberties  are  our  right  and  due 
inheritance,  no  less  than  our  very  lands  and  goods." 
This  was  a  square  issue  squarely  drawn  but  it  was  not 
at  this  time  further  developed.  In  the  end  the  king 
had  to  abandon  the  attempt  which  he  had  made,  though 
the  lesson  that  a  body  of  law  existed  in  the  state  superior 
to  his  will  was  very  imperfectly  learned. 

This  was  the  opening  battle  of  a  long  struggle  and 


CONSTITUTIONAL  HISTORY  117 

typical  of  it  all.  The  position  of  the  king  was  that 
rights  and  liberties  which  limited  his  own  action  were 
grants  from  the  crown  and  might  therefore  legitimately 
be  revoked.  On  the  contrary  Parliament  asserted,  as 
it  put  it  later  in  the  reign,  that  they  were  "the  ancient 
and  undoubted  birthright  and  inheritance  of  the  subjects 
of  England,"  that  is,  possessed  by  the  same  title  as 
private  property  and  as  little  subject  to  withdrawal  by 
the  king.  In  other  words  this  was  saying  that  they 
were  rights  and  privileges  by  which  the  king  himself 
was  bound  and  limited  in  his  action.  This  was  one  form 
of  the  fundamental  issue,  and  it  was  to  find  a  working 
compromise  between  the  two  assertions  that  it  must  be 
pressed  to  a  settlement. 

Beyond  this  point  the  conflict  hardly  developed  in 
the  reign  of  James  I.  The  actual  issues  between  king 
and  Parliament  were  largely  of  finances,  in  which  the 
king  believed  himself  driven  to  raise  money  without 
Parliamentary  grant  and  finally  to  free  himself  from 
Parliamentary  opposition  by  refusing  to  call  Parliament 
together  during  periods  of  unusual  length.  Three  times 
during  the  reign  the  royal  theory  of  a  monarchy  free 
from  restrictions  was  stated  with  great  clearness.  This 
was  done  first  by  the  barons  of  the  Exchequer  in  their 
decision  that  the  "impositions"  were  legal;  and  again 
by  an  Oxford  scholar,  Cowell  by  name,  in  his  law  dic- 
tionary called  "The  Interpreter,"  in  which  he  went  so 


118  OUTLINE  SKETCH  OF  ENGLISH 

far  that  the  first  edition  was  suppressed  because  of  the 
criticism  aroused  in  Parliament;  and  third  by  the  king 
himself  in  a  rebuke  administered  by  him  in  person  to 
the  judges  of  the  Exchequer  Chamber  in  1616.  In  this 
last  case  the  king  declared  that  his  prerogative  was 
twofold,  one  ''ordinary"  which  might  be  subject  to 
law  and  the  other  relating  to  his  supreme  power  and 
sovereignty,  by  which  he  meant  his  superiority  to  the 
law.  This  declaration  was  meant  to  be  the  royal  inter- 
pretation of  the  fact  that  the  king  is  at  once  under  the 
law  and  above  the  law.  On  its  side,  Parliament  made 
two  formal  statements  of  what  it  claimed,  one  in  the 
Apology  of  1604  and  the  other  in  the  Protestation  of 
1621,  both  of  which  have  been  quoted  above,  but  Parlia- 
ment stated  its  position  as  a  matter  of  fact.  It  made 
no  attempt  to  go  back  of  what  the  law  was  and  find  a 
theoretical  or  scientific  foundation  upon  which  to  rest 
its  justification.  All  that  had  yet  to  be  worked  out  by 
future  experience. 

In  such  assertions  as  these  the  king  almost  necessarily 
had  a  certain  considerable  advantage.  In  the  past  it 
had  been  natural  for  thinkers  to  say  that  sovereignty 
resided  in  a  person.  Historically  there  had  been  little 
experience  in  practice  of  a  sovereign  people,  or  of  a 
sovereign  legislature,  and  the  sovereignty  of  the  people 
had  not  yet  been  worked  out  in  any  theory  capable  of 
practical  application.  It  had  been  sometimes  stated  in 


CONSTITUTIONAL  HISTORY  119 

philosophical  speculation,  but  not  with  any  reference 
to  working  forms.  It  had  been  sometimes  stated  in 
legal  treatises  but  only  in  the  most  abstract  way  as  a 
principle  on  which  might  be  based  a  very  different  actual 
form  of  government  from  any  democracy,  the  imperial 
government  of  Rome  for  instance.  The  Roman  law 
declared  that  the  emperor  possessed  the  supreme  law- 
making  power  because  the  people  had  vested  their 
authority  in  him — cum  populus  ei  et  in  eum  omne 
imperium  suum  et  potestatem  concedit.  But  it  was  not 
a  sovereign  people  of  that  kind  towards  which  the 
seventeenth  century  was  working. 

As  a  practical  matter  also  is  to  be  reckoned  the 
revival  of  impeachment  by  Parliament  during  the  last 
years  of  James's  reign.  During  the  long  period  of  the 
strong  monarchy,  since  1450  in  fact,  this  weapon  against 
the  king  had  not  been  used.  While  Parliament  was 
under  royal  control,  either  because  it  was  too  weak  to 
resist,  or  because  it  really  wished  to  support  the  king's 
policy,  there  had  been  no  occasion  for  its  use.  But  now 
conflict  had  begun  again,  and  the  study  of  history  on 
the  Parliamentary  side  speedily  restored  this  weapon 
to  its  hand.  In  a  series  of  cases  towards  the  end  of  the 
reign  of  James,  some  of  them  experimental,  uncertain 
as  to  details  of  method,  one  of  them  at  least,  the  im- 
peachment of  the  Lord  Chancellor  Francis  Bacon, 
probably  not  aimed  directly  at  the  king,  Parliament 


120  OUTLINE  SKETCH  OF  ENGLISH 

recovered  a  knowledge  of  how  to  use  this  method  of 
attack.  Early  in  the  reign  of  Charles  I  it  put  it  into 
full  operation  in  the  impeachment  of  his  chief  minister, 
the  duke  of  Buckingham.  In  this  case,  as  has  already 
been  stated,  the  speakers  for  the  House  of  Commons 
came  very  near  to  stating  as  clearly  as  it  could  be  done 
today,  the  doctrine  that  the  king  can  do  no  wrong,  that 
the  minister  is  responsible  for  the  acts  of  the  govern- 
ment and  cannot  shelter  himself  behind  the  king's 
orders ;  and  the  king,  insisting  on  his  own  responsibility, 
found  no  method  of  escape  except  to  end  the  impeach- 
ment by  a  dissolution  of  Parliament. 

The  reign  of  Charles  I,  at  least  to  1640,  is  a  natural 
continuation  of  his  father 's.  Charles  was  more  obstinate 
and  more  short  sighted  than  James,  and  Parliament  had 
now  a  clearer  understanding  of  what  was  at  stake.  For 
these  reasons  things  drifted  more  rapidly  to  extremes 
than  in  the  earlier  period.  By  1628  issues  had  been 
so  sharply  drawn  upon  a  number  of  questions  of  detail 
that  Parliament  was  ready  to  put  into  formal  shape  its 
position  regarding  them  and  to  demand  that  the  king 
accept  the  resulting  statement  of  their  views  as  law 
binding  upon  himself. 

The  formal  document  in  which  this  statement  was 
made,  which  the  king  did  finally  agree  to,  is  the  Petition 
of  Right,  one  of  the  series  of  great  documents  of  our 
constitutional  history  which  begins  with  Magna  Carta. 


CONSTITUTIONAL  HISTORY  121 

The  Petition  of  Right  in  spirit,  purpose,  and  method 
is  exactly  in  line  with  the  Great  Charter.  It  asserts  that 
the  things  to  which  it  demands  the  king's  agreement 
were  already  the  law  of  the  land,  and  it  is  based  upon 
the  supposition  that  the  king  has  shown  himself  so 
unwilling  to  regard  these  principles  that  it  must  obtain 
his  formal  pledge,  binding  upon  his  successors  as  in 
1215,  to  respect  them  in  the  future.  As  a  matter  of 
fact,  what  the  document  really  does,  as  was  done  in  a 
few  at  least  of  the  clauses  of  Magna  Carta,  is  to  demand 
that  Parliament's  view  of  what  was  lawful  should  be 
accepted  by  the  king  instead  of  any  view  that  may  have 
been  acted  upon  by  earlier  kings.  The  assertion  as  to 
Habeas  Corpus  may  be  taken  as  a  typical  instance. 
Habeas  Corpus  was  a  writ  designed  to  prevent  the 
arrest  and  holding  in  prison  of  a  man  without  just 
cause.  The  writ  brought  the  officer  holding  the  prisoner 
before  a  court  of  law,  most  often  before  the  court  of 
King's  Bench,  and  required  him  to  show  upon  what 
charges  he  was  held.  If  these  were  insufficient  or 
illegal,  the  court  discharged  the  prisoner.  Now  Par- 
liament asserted  that  specific  reasons  must  be  given  in 
every  case,  that  the  answer  that  the  prisoner  was  held 
by  the  order  of  the  king  or  the  Council  was  not  satis- 
factory. Undoubtedly  such  a  view  of  the  real  meaning 
of  the  writ  was  logical  enough,  but  there  is  also  no 


122  OUTLINE  SKETCH  OF  ENGLISH 

doubt  but  that  orders  of  king  or  Council  had  been  in 

the  past  regarded  as  a  satisfactory  answer  to  the  writ. 

Under  the  imperative  necessity  of  obtaining  a  grant 
of  money  from  Parliament  because  of  his  unfortunate 
war  with  France,  the  king  was  obliged  to  yield  and  to 
enact  the  Parliamentary  interpretation  into  law.  It 
cannot  be  affirmed  that  the  Petition  of  Right  is  of  equal 
importance  in  English  constitutional  history  with  either 
Magna  Carta  or  the  later  Bill  of  Rights.  It  deals  with 
only  four  points  and  the  two  most  important  of  these, 
taxation  and  Habeas  Corpus,  needed  further  and  supple- 
mentary legislation  later  in  the  century.  It  uses  many 
words  after  a  fashion  of  the  time  and  is  the  least  concise 
and  clean-cut  of  all  our  constitutional  documents.  Its 
historical  value  is  to  be  found  less  in  the  enactment  of 
constitutional  principles  than  in  the  precedent  which 
it  established  in  the  struggle  of  that  century  of  the 
Parliamentary  coercion  of  the  king  in  constitutional 
interpretation,  and  in  the  assertion  which  it  made  in  a 
most  striking  manner  of  the  supremacy  of  the  law. 

Not  long  after  agreeing  to  the  Petition  of  Right, 
Charles's  patience  with  Parliament  became  exhausted, 
and  there  followed  the  longest  period  of  government 
without  calling  a  Parliament  together  since  the  House 
of  Commons  began  to  be.  The  king's  decision  to  rule 
alone  was  of  as  vital  significance  in  the  history  of  New 
England  as  of  Old.  The  Puritan  party,  which  had 


CONSTITUTIONAL  HISTORY  123 

arisen  in  the  later  years  of  Elizabeth 's  reign,  the  radical 
party  in  questions  of  religious  reformation  and  of 
opposition  to  the  king,  was  grown  now  to  be  numerous 
in  England,  and  seeing  his  success,  began  to  despair  of 
the  future  at  home.  No  more  in  the  church  than  in  the 
state  did  there  seem  any  hope.  Laud,  in  full  sympathy 
with  the  king  and  appointed  by  him  archbishop  of 
Canterbury,  seemed  in  this  interval  of  arbitrary  govern- 
ment as  certain  to  carry  out  his  plan  as  the  king.  The 
age  of  "comprehension,"  of  liberal  blindness  to  lax 
observance  of  established  forms  in  public  worship,  was 
at  an  end,  and  the  Puritan  who  would  not  make  use  of 
the  legal  ritual  was  being  driven  out  of  the  national 
church.  Religious  liberty  and  political  liberty,  as  they 
were  understood  by  the  Puritans,  seemed  perishing 
together  in  England.  In  this  despair  thousands  of 
Puritan  families  determined  to  begin  another  England 
in  America  and  in  so  doing  they  rescued  the  northern 
colonies  from  the  gradual  encroachments  of  Dutch  and 
French. 

But  more  important  than  the  geographical  expansion 
which  the  Puritans  secured  were  the  constitutional  ideas 
which  they  brought  to  America.  There  was  indeed  to 
be  for  these  ideas  an  immediate  future  in  England  which 
the  Puritan  emigrants  did  not  foresee,  a  future  in  which 
they  were  to  be  forced  to  a  premature  development  in 
the  hothouse  process  of  revolution.  But  it  was  to  be 


124  OUTLINE  SKETCH  OF  ENGLISH 

a  development  short  lived  and  without  permanent 
influence  in  the  mother  country.  It  was  in  that  other 
England  which  they  helped  to  found  across  the  sea  that 
the  peculiar  constitutional  ideas  of  the  Puritans  in  a 
slower  and  more  normal  development  were  to  bear  fruit 
for  all  the  world.  Nor  must  the  fact  be  overlooked  that 
it  was  not  in  New  England  alone  that  Puritan  colonists 
settled,  nor  through  New  England  influence  alone  that 
Puritan  ideas  affected  the  future  in  America. 

At  home,  between  1630  and  1640,  everything  seemed 
to  be  going  as  the  king  and  Laud  desired.  The  modern 
newspaper  was  not  yet  in  existence.  None  of  the 
machinery  of  democratic  expression,  public  meetings, 
political  speaking,  party  organization,  had  yet  been 
devised.  Parliament  still  remained  the  only  organ  in 
the  state  by  which  the  general  opinion  of  the  nation 
could  be  made  conscious  of  itself,  could  be  created, 
gathered,  and  expressed.  By  the  policy  of  the  king 
the  opposition  was  for  a  period  of  eleven  years  deprived 
of  the  opportunity  of  Parliamentary  expression,  and  it 
was  in  consequence  helpless  and  dumb.  The  financial 
dependence  of  the  king  on  Parliament,  which  was  at 
that  date  the  only  thing  making  a  meeting  of  Parliament 
necessary,  seemed  for  the  moment  at  least  to  be  success- 
fully overcome.  The  search  for  precedents  out  of  the 
past  came  here  strongly  to  the  assistance  of  arbitrary 
government,  and  various  expedients  for  raising  money 


CONSTITUTIONAL  HISTORY  125 

were  discovered,  long  disused  but  not  forbidden  by  law, 
like  ship-money  and  distraint  of  knighthood;  or  in- 
genuity invented  means  of  avoiding  the  strict  letter  of 
statutes  as  in  the  revival  of  monopolies.  By  means  like 
these,  and  a  liberal  allowance  of  debts,  the  government 
managed  to  meet  its  current  needs  during  years  of  no 
special  financial  strain. 


CHAPTER  VII 
THE  VICTORY  OF  PARLIAMENT 

Charles  I  succeeded,  as  has  been  said,  by  his  arbitrary 
measures  in  establishing  a  temporary  independence  of 
Parliament.  Governments  can  hardly  hope,  however, 
to  go  on  for  many  years  without  special  financial  strain, 
and  the  end  came  for  the  government  of  Charles  through 
yielding  to  a  very  natural  temptation.  So  great  appar- 
ent success  had  crowned  the  efforts  of  Laud  to  recon- 
struct the  English  church  according  to  the  aristocratic 
ideas  of  the  high  church  party,  that  the  conclusion 
seemed  obvious  that  with  the  continued  backing  of  the 
king  the  same  thing  might  be  done  in  Scotland.  The 
king's  ideal  of  monarchical  power  would  promise  to  be 
solidly  established  in  facts,  if  Presbyterianism  in  Scot- 
land could  be  curbed  and  a  subservient  church  put  in  its 
place.  The  Scots  proved  to  be,  however,  too  thoroughly 
devoted  to  their  national  worship.  They  resisted  in 
arms,  and  Charles  was  compelled  to  raise  and  main- 
tain an  army.  That  was  too  great  a  strain  for  his 
makeshift  finances.  It  became  necessary  to  call  a 
Parliament. 


CONSTITUTIONAL  HISTORY  127 

In  April,  1640,  the  so-called  Short  Parliament  came 
together.  It  speedily  disappointed  the  hopes  of  the 
king  and  his  advisers.  The  ablest  of  the  king's  sup- 
porters, probably  the  ablest  man  of  the  time,  was  the 
earl  of  Strafford,  who  as  Sir  Thomas  Wentworth  had 
been  in  the  early  part  of  the  reign  a  leader  of  the  oppo- 
sition but  had  not  been  able  to  follow  that  party  into 
its  extreme  position  and  had  gone  over  to  the  king.  He 
with  others  urged  the  calling  together  of  Parliament. 
It  was  hoped  that  the  national  antipathy  to  the  Scots 
would  induce  the  House  of  Commons  to  vote  the  king 
at  once  such  money  as  he  needed  to  carry  on  the  war, 
and  then  the  complaints  of  the  opposition  could  be  dealt 
with  from  a  position  of  advantage.  But  the  leaders  of 
Parliament  were  as  alive  to  this  possibility  as  the 
advisers  of  the  king,  and  they  insisted  on  examining  and 
criticizing  the  policy  which  had  been  followed  since  the 
last  Parliament  before  making  a  grant  of  money.  When 
the  king  became  convinced  that  Parliament  was  deter- 
mined to  keep  to  this  plan,  he  dissolved  it  in  anger  after 
a  session  of  three  weeks  in  which  nothing  had  been 
accomplished. 

But  something  had  been  gained.  The  nation  had  been 
made  aware  of  its  own  opinion  and  of  the  strength 
which  it  possessed  as  against  the  king.  The  members 
of  the  dismissed  Parliament  returned  to  their  homes 
with  new  courage  and  new  determination,  and  their 


128  OUTLINE  SKETCH  OF  ENGLISH 

spirit  was  reflected  in  the  elections  which  were  held  later 
in  the  summer.  The  king  tried  the  expedient  of  calling 
a  meeting  of  the  old  great  Council,  but  obtained  from 
it  no  permanent  relief.  It  was  not  long  indeed  until  he 
was  convinced  that  he  could  not  go  on  without  Parlia- 
ment, whatever  Parliament  might  do,  and  a  new  one 
was  summoned  to  meet  at  the  beginning  of  November 
of  the  same  year.  This  is  the  famous  Long  Parliament, 
which  by  one  stretch  of  ingenuity  or  another  is  reckoned 
to  have  continued  in  existence  for  twenty  years. 

The  Long  Parliament  met  in  a  most  determined 
spirit.  The  House  of  Commons  was  almost  unanimousr 
The  number  of  members  who  were  ready  to  defend  the 
acts  of  the  king  against  the  attacks  of  the  majority 
was  very  small.  The  majority  on  its  side  was  conscious 
of  the  character  of  the  crisis  in  which  they  were  called 
to  act,  of  the  issue  between  monarchy  and  Parliamentary 
government,  as  no  similar  body  of  men  had  ever  been 
before  in  any  crisis  of  English  history.  In  their  think- 
ing also,  in  the  argumentative  defence  of  their  position, 
if  they  had  not  yet  reached  any  ultimate  principles 
which  they  could  state,  they  were  at  least  on  the  eve 
of  great  advance  in  that  direction.  In  this  advance 
of  theirs  the  student  of  constitutional  history,  and 
especially  the  student  of  the  antecedents  of  American 
constitutional  ideas,  is  particularly  interested.  They 
could  hope  also  to  proceed  to  extremes  against  the  king 


CONSTITUTIONAL  HISTORY  129 

without  interruption,  for  the  Scottish  army,  known  to 
be  in  sympathy  with  them,  had  taken  its  station  in  the 
north  of  England  ready  to  march  on  London  at  a 
moment's  notice. 

The  first  step  of  the  House  of  Commons  was  the 
impeachment  of  Strafford.  There  was  no  doubt  some 
personal  bitterness  against  a  man  who  seemed  to  the 
opponents  of  the  king  to  be  an  apostate  from  their 
cause;  they  were  also  no  doubt  afraid  of  his  abilities; 
but  it  is  equally  true  that  in  him  they  intended  and 
conducted  an  attack  upon  the  king  which  did  much  to 
bring  the  fundamental  contradiction  of  the  two  positions 
into  light.  The  accusation  was  treason.  But  as  yet  in 
English  history  there  had  been  no  definition  of  treason 
except  as  an  offence  against  the  king.  If  sovereignty  in 
reality  resided  in  the  king,  treason  took  necessarily  the 
form  of  an  offence  against  him.  Here  was  a  logical 
difficulty  insuperable  to  ordinary  and  traditional  ways 
of  thinking.  Strafford,  as  the  most  devoted  supporter 
of  the  king  in  his  conflict  with  Parliament,  could  not 
have  committed  treason  in  any  historical  meaning  of 
the  term.  Yet  some  way  must  be  found  of  convincing 
the  House  of  Lords,  on  which  rested  the  responsibility 
of  judging  a  man  upon  a  capital  charge,  that  they  might 
righteously  find  guilty  of  treason  and  condemn  to  death 
one  who  had  most  faithfully  served  the  king  as  the  king 


130  OUTLINE  SKETCH  OF  ENGLISH 

himself  believed.     If  this  could  not  be  done,  the  hope 
of  a  successful  impeachment  must  be  abandoned. 

Forced  forward  by  this  dilemma,  the  leaders  of  the 
House  of  Commons  advanced  in  the  formulation  of  their 
case  to  a  statement  which  they  might  logically  have 
rested  on  Magna  Carta  had  they  known  as  much  of  the 
true  historical  influence  of  that  document  during  the 
formative  centuries  of  the  past  as  they  believed  them- 
selves to  know  of  its  special  clauses.  As  a  matter  of 
fact,  though  there  had  been  much  thinking  on  the 
Parliamentary  side  since  the  king's  father  began  to  put 
the  issue  as  he  understood  it  into  words,  they  were  not 
entirely  conscious  of  what  they  were  doing.  It  is 
probable  that  they  were  thinking  only  of  the  specific 
case  and  its  difficulty,  though  reasoning  concerning  the 
foundations  of  government  had  already  begun  and  was 
•  soon  to  go  very  far  in  the  democratic  wing  of  the  party. 
In  reality  what  they  did  in  constructing  and  endeavor- 
ing to  prove  their  accusation  of  treason  was  to  combine 
together  the  fundamental  principle  on  which  Magna 
Carta  rested  with  that  on  which  impeachment  rested. 
If  there  existed  a  body  of  law  which  the  king  was  bound 
to  keep,  and  if  the  king  who  refused  obedience  could 
be  driven  from  the  throne,  made  non-existent  in  the 
state,  then  surely  the  lesser  man,  the  minister  who  aided 
and  abetted  the  king  in  his  refusal,  might  justly  be 
made  to  suffer  the  penalties  of  treason.  But  they  did 


CONSTITUTIONAL  HISTORY  131 

not  quite  see  that  this  was  what  they  were  doing.  The 
argument  in  this  form  was  still  beyond  them.  They 
still  interpreted  the  past  history  of  the  constitution  too 
narrowly,  however  rapidly  they  were  advancing  in  the 
understanding  of  its  meaning. 

What  Pym  said  in  opening  the  case  of  the  Commons 
before  the  Lords  was  that  Strafford  had  committed 
treason  in  attacking  and  endeavoring  to  subvert  the 
fundamental  laws  of  the  country  and  the  liberties  of 
the  subject;  or  as  it  was  phrased  in  the  bill  of  attainder, 
where  the  formal  accusation  was  no  longer  treason 
against  the  king,  but  "high  treason,"  against  whom  or 
what  not  specified,  "for  endeavoring  to  subvert  the 
ancient  and  fundamental  laws  and  government  of  His 
Majesty's  realms  of  England  and  Ireland  and  to  intro- 
duce an  arbitrary  and  tyrannical  government  against 
law  in  the  said  kingdom."  The  case  for  impeachment 
was  not  clear  enough  to  convince  the  Lords,  and  a  bill 
of  attainder  had  to  be  substituted  for  it.  The  Lords  were 
little  better  satisfied  with  this  form,  and  it  could  be 
carried  only  in  a  very  small  house  by  the  mob  pressure 
of  Puritan  London,  and  by  the  same  means  the  king  was 
made  to  sign  the  bill. 

There  followed  several  months  of  active  legislation, 
mostly  destructive  in  character,  in  which  the  king  was 
deprived  of  the  institutions  of  arbitrary  government, 
like  the  Star  Chamber  Court,  and  of  the  sources  of 


132  OUTLINE  SKETCH  OF  ENGLISH 

illegitimate  revenue  which  had  been  found  for  him. 
As  the  end  of  the  first  session  drew  near,  it  became 
evident  that  the  House  of  Commons  was  no  longer  a 
unit.  The  number  of  those  who  thought  that  enough 
had  been  demanded  of  the  king  was  increasing,  and 
when  the  second  session  opened  in  October,  1641,  the 
division  of  parties  was  nearly  even.  The  Grand  Remon- 
strance, the  appeal  to  the  nation  of  the  party  resolved 
to  go  on  with  the  radical  programme,  was  carried  by  a 
majority  of  eleven  only  in  a  vote  of  more  than  three 
hundred.  Here  was  the  material  of  conflict  unless  a 
compromise  could  be  found  and  the  Puritan  party  was 
not  one  of  compromise. 

Actual  civil  war  began  over  the  question  of  the  control 
of  the  militia,  the  only  organized  military  force  in 
England,  and  the  action  of  the  House  of  Commons  in 
the  matter  marks  another  step  forward  towards  the 
doctrine  of  the  sovereignty  of  the  people.  When  the 
king  resolutely  refused  to  accept  the  bill  transferring 
the  appointment  and  responsibility  of  militia  officers 
from  himself  to  Parliament,  the  House  of  Commons 
resolved  to  carry  out  its  will  by  what  it  pleased  to  call 
an  "ordinance,"  remembering  perhaps  that  there  had 
been  in  early  times  law-making  by  non-Parliamentary 
legislation  called  by  that  name,  but  forgetting  that  an 
ordinance  in  the  fourteenth  century  was  not  an  act  of 


CONSTITUTIONAL  HISTORY  133 

Parliament  without  the  king  but  an  act  of  king  and 
Lords  without  the  Commons. 

In  defence  of  their  action,  of  their  right  to  make  law 
without  the  king's  formal  consent,  the  House  of 
Commons  declared:  "What  they  do  herein  hath  the 
stamp  of  the  royal  authority,  although  His  Majesty, 
seduced  by  evil  counsel,  do  in  his  own  person  oppose  or 
interrupt  the  same;  for  the  King's  supreme  and  royal 
pleasure  is  exercised  and  declared  in  this  High  Court 
of  law  and  council,  after  a  more  eminent  and  obligatory 
manner  than  it  can  be  by  personal  act  or  resolution  of 
his  own." 

These  words  do  not  contain  an  explicit  declaration 
of  the  sovereignty  of  the  people  or  of  Parliament  but,  if 
they  are  to  be  scientifically  defended,  it  can  be  done  only 
on  the  ground  of  the  sovereignty  of  the  people  expressed 
through  Parliament.  What  these  words  really  say  is 
that  sovereignty  is  exercised  by  Parliament,  not  by  the 
man  who  holds  the  name  and  title  of  sovereign.  It  may 
be  added  that  they  are  so  entirely  assumed  to  be  true 
in  the  present  English  government  that  the  king  is  not 
supposed  to  have  any  will,  or  opinion  even,  on  any 
political  question,  except  that  of  his  ministers. 

The  war  went  against  the  king.  In  a  little  more  than 
two  years  he  was  obliged  to  surrender  himself  to  Parlia- 
ment. In  a  second  stage  of  the  war,  which  followed, 
those  of  the  Presbyterian  Puritans  and  their  Scottish 


134  OUTLINE  SKETCH  OF  ENGLISH 

supporters  who  were  ready  to  make  some  agreement  with 
the  king  in  the  hope  of  saving  a  national  church  organi- 
zation, were  defeated,  and  the  democratic  wing  of  the 
Puritan  party,  the  Independents  or  Congregationalists  as 
they  were  called  from  their  ecclesiastical  teaching,  was  at 
the  end  of  1648  in  sole  possession  of  power.  They  re- 
turned from  the  field  very  angry  with  the  king  and  with 
the  Presbyterian  Puritans  for  what  they  believed  to  be 
the  unnecessary  sacrifices  of  the  second  war,  and  they 
immediately  proceeded  against  both.  First  the  Presby- 
terians were  all  expelled  from  Parliament,  leaving  of 
the  Long  Parliament  the  Independents  only,  a  Parlia- 
ment which  came  to  be  known  as  the  Rump.  Then  in 
a  second  step  they  constituted  a  court  to  try  the  king  for 
treason — treason  in  the  sense  of  Strafford's  treason, 
against  the  nation  and  the  fundamental  laws,  not 
against  the  sovereign  person.  In  the  formal  charge 
before  the  court  they  said:  "That  the  said  Charles 
Stuart,  being  admitted  King  of  England,  and  therein 
trusted  with  a  limited  power  to  govern  by,  and  accord- 
ing to  the  laws  of  the  land,  and  not  otherwise;  .... 
yet,  nevertheless,  out  of  a  wicked  design  to  erect  and 
uphold  in  himself  an  unlimited  and  tyrannical  power 
to  rule  according  to  his  will,  and  to  overthrow  the  rights 
and  liberties  of  the  people,  ....  which  by  the  funda- 
mental constitutions  of  this  kingdom  were  reserved  on 
the  peoples'  behalf  in  the  right  and  power  of  frequent 


CONSTITUTIONAL  HISTORY  135 

and  successive  Parliaments;  ....  he,  the  said  Charles 
Stuart,  for  the  accomplishment  of  such  his  designs  .... 
hath  traitorously  and  maliciously  levied  war  against  the 
present  Parliament,  and  the  people  therein  represented." 
In  trying  the  king  upon  a  charge  of  this  kind,  the 
Independents  necessarily  broke  with  the  history  of  the 
past,  with  established  form  and  precedent,  even  more 
completely  than  they  had  done  before.  The  House  of 
Lords,  even  the  little  fraction  left  in  that  House,  would 
not  go  so  far.  All  government  was  reduced  to  one  House 
and  its  appointees,  and  again  a  declaration  was  adopted 
in  defence  of  this  position,  having  especially  in  mind  the 
trial  of  the  king.  The  House  of  Commons  resolved 
"that  the  people  are,  under  God,  the  original  of  all 
just  power;  that  the  Commons  of  England,  in  Parlia- 
ment assembled,  being  chosen  by  and  representing  the 
people,  have  the  supreme  power  in  this  nation;  that 
whatsoever  is  enacted  or  declared  for  law  by  the 
Commons  in  Parliament  assembled,  hath  the  force  of 
law,  and  all  the  people  of  this  nation  are  concluded 
thereby,  although  the  consent  of  the  King  or  House  of 
Peers  be  not  had  thereunto."  But  already  by  this  time 
the  sovereignty  of  the  people  and  the  delegated  char- 
acter of  government  had  been  expressed  clearly  and 
fully  by  so  many  mouths  and  pens  that  there  can  be  no 
doubt  it  had  become  one  of  the  ruling  ideas  of  the  party. 
It  had  been  stated  ten  years  before  by  Thomas  Hooker 


136  OUTLINE  SKETCH  OF  ENGLISH 

in  a  sermon  which  he  preached  not  long  after  his  arrival 
in  Connecticut  in  this  way :  ' '  They  who  have  the  power 
to  appoint  officers  and  magistrates,  it  is  in  their  power 
also  to  set  the  bounds  and  limitations  of  the  power  and 
place  unto  which  they  call  them.  And  this,  in  the  first 
place,  because  the  principle  of  authority  resides  in  the 
free  consent  of  the  people."  Hardly  a  more  striking 
example  can  be  had  of  the  transfer  of  Puritan  ideas  of 
government  to  new  influence  and  power  in  America. 

It  is  hardly  possible  today  to  do  better  than  these 
statements  in  formulation  of  the  principle  of  the  sover- 
eignty of  the  people  and  of  the  representative  character 
and  derived  powers  of  the  legislature.  We  must 
remember,  however,  that  in  England  such  ideas  were 
revolutionary.  The  new  constitution  which  was  fore- 
shadowed by  them  was  a  break  with  past  history  and, 
however  logically  involved  in  that  past,  as  an  experiment 
in  actual  government  it  had  not  been  prepared  for  in 
experience  or  in  institutions  by  an  adequate  political 
development.  In  the  details  of  this  advance  the  Inde- 
pendents were  influenced  by  their  religious,  as  well  as 
by  their  political  training.  After  a  long,  slow  process 
of  growth  towards  democracy,  which  was  not  to  be  begun 
for  more  than  a  hundred  years,  England  was  to  come 
in  reality  to  these  principles,  though  not  in  avowed  law 
and  not  along  a  road  which  led  through  this  age  of 
revolution.  It  was  American,  not  English,  constitu- 


CONSTITUTIONAL  HISTORY  187 

tional  law  which  was  here  making  its  first  beginning,  its 
first  essays  in  imperfect  and  half  conscious  formulation, 
and  it  was  in  America  that  these  principles  were 
developed  in  unbroken  growth  into  the  government  of 
a  great  people. 

The  execution  of  the  king  and  the  disappearance  of 
the  House  of  Lords,  left  the  House  of  Commons  the  sole 
survivor  of  the  national  authorities  of  the  old  constitu- 
tion. But  the  House  of  Commons  was  the  Rump  merely, 
the  Independent  members,  and  the  real  power  in  the 
state  was  undoubtedly  the  army  and  its  leading  officers. 
But  the  chief  influences  in  army  circles  had  been  for  a 
long  time  democratic,  and  years  before  it  succeeded  to 
power  individuals  and  councils  had  been  busy  consider- 
ing the  foundations  of  government  and  the  forms  it 
should  assume.  A  flood  of  proposals,  theories,  and 
arguments  appeared  in  those  years,  as  characteristic  in 
tone  and  substance  of  an  age  of  religious,  as  of  political 
revolution.  For  the  Puritan,  especially  for  the  Inde- 
pendent, this  age  was  both,  and  the  results  he  attempted 
to  accomplish  in  constitution  making  are  a  compound 
of  the  conclusions  to  which  the  tendencies  of  English 
history  would  naturally  lead,  prematurely  conceived, 
and  the  ideas  which  he  drew  from  the  Bible  and  applied 
in  the  organization  of  his  churches. 

Of  these  suggestions,  the  most  formal  and  developed 
as  a  proposal  to  be  carried  out  in  government,  was  that 


138  OUTLINE  SKETCH  OF  ENGLISH 

which  was  presented  to  the  House  of  Commons  in 
January,  1649,  under  the  title,  "The  Agreement  of  the 
People."  This  title  conveys  to  us  less  clearly  than  it 
did  to  contemporaries  what  the  document  was  intended 
to  accomplish ;  but  it  implies  and  was  intended  to  imply 
what  the  preamble  of  the  American  Constitution  asserts : 
"We  the  people  of  the  United  States  do  ordain  and 
establish  this  Constitution."  It  implied  that  the  people 
of  England  by  an  agreement  formally  entered  into  were 
to  make  a  written  constitution  in  order  to  establish  a 
government  and  define  its  powers.  As  a  proposal  for 
actual  government,  we  need  not  consider  the  Agreement 
of  the  People,  for  it  was  never  put  into  operation,  but 
as  a  landmark  in  the  history  of  American  constitutional 
law  it  is  of  great  importance.  The  foundation  upon 
which  it  rested,  the  agreement  of  the  people,  is  the  same 
as  that  upon  which  our  constitutions  rest,  and  it  was 
here  proposed  for  the  first  time  in  history  as  the  founda- 
tion of  a  national  government.  The  similar  compacts 
which  had  preceded  it  in  America,  though  they  came 
from  the  same  ultimate  sources  and  were  truly  intended 
to  establish  "a  Civil  Body  Politick,"  served  for  little 
communities  of  people  in  which  an  actual  democracy 
was  entirely  feasible,  and  representative  institutions,  as 
an  expedient  for  working  a  democracy  on  a  great  scale, 
need  scarcely  be  considered  for  a  long  time.  The  Agree- 


CONSTITUTIONAL  HISTORY  139 

ment  of  the  People  was  seriously  intended  as  the  consti- 
tution of  a  great  nation. 

The  Agreement  of  the  People  was  never  put  into 
operation.  It  was  the  programme,  not  of  the  majority 
of  the  Independent  party,  but  of  the  more  radical 
extremists.  It  has  an  importance  in  history,  however, 
beyond  the  fact  that  it  was  the  first  written  constitution 
proposed  for  a  great  state.  In  1653  the  leaders  of  the 
army  with  the  approval  of  Cromwell  drew  up  another 
written  constitution,  called  the  Instrument  of  Govern- 
ment, much  more  concise,  specific  and  practicable  than 
the  Agreement  but  following  its  suggestions  in  many 
particulars.  This  constitution  was  actually  put  into 
operation  and  formed,  nominally  at  least,  the  basis  of 
the  government  of  England  for  something  more  than 
three  years,  the  first  written  constitution  in  history 
which  actually  created  a  government  of  delegated 
powers,  defined  and  limited,  for  a  nation.  Its  history 
does  not  here  concern  us,  nor  the  astonishing  number 
of  details  in  which  it  anticipated  later  American  practice, 
for  it  had  no  influence  on  the  constitutional  history  of 
England. 

The  Puritan  revolution  of  these  twenty  years  from 
1640  to  1660  marks  the  division  of  the  stream  of  English 
constitutional  development  into  two  branches.  For 
England  it  was  an  attempt  to  arrive  at  the  logical  con- 
clusions of  that  development  prematurely,  by  violence 


140  OUTLINE  SKETCH  OF  ENGLISH 

and  revolution,  under  the  stimulus  of  religious  as  well 
as  political  excitement,  before  an  adequate  preparation 
in  ideas  and  institutions  had  made  the  ground  ready. 
In  the  reaction  which  naturally  followed,  the  work  of 
the  revolution  was  undone.  Constitutional  development 
linked  itself  back  to  the  results  of  its  more  natural 
processes  in  the  stage  which  it  had  reached  at  the  end 
of  the  first  session  of  the  Long  Parliament  in  1641. 
Nearly  everything  for  which  the  revolution  strove  is  now 
I  a  part  of  the  English  constitution,  but  not  as  a  result 
i  of  its  endeavor.  Rather  as  a  result  of  the  slower  and 
Tnore  normal  process  of  growth,  out  of  which  in  a  sense 
the  revolution  indeed  came  but  which  it  for  a  moment 
interrupted.  In  the  Puritan  and  Quaker  colonies  of 
America  the  ideas  of  this  revolution  created  the  natural 
political  atmosphere.  There  they  were  not  revolutionary, 
but  became  the  material  from  which  the  normal  consti- 
tutional life  of  these  little  states  drew  its  strength. 
Their  natural  political  development  began  with  these 
ideas  and  led,  as  their  population  and  needs  increased, 
to  more  and  more  extensive  realization  of  them  in 
practice,  until  at  the  last  they  had  large  share,  with 
other  influences,  in  shaping  the  institutions  of  the  second 
great  Anglo-Saxon  nation. 


CHAPTER  VIII 
THE  VICTORY  CONFIRMED 

The  extent  of  the  reaction  against  the  radical  party 
was  shown  by  the  character  of  the  restoration  of  Charles 
II  in  1660.  The  king  was  restored  to  the  throne  with 
no  constitutional  guarantees  whatever.  Nothing  was 
said  of  the  sins  of  his  father,  nor  of  the  principles  which 
the  great  majority  of  the  House  of  Commons  were 
determined  to  defend  in  1640.  The  legislation  of  the 
first  session  of  that  Parliament  remained  on  the  statute 
books,  and  arbitrary  government  was  to  that  extent 
deprived  of  the  means  of  operation.  But  the  supremacy 
of  Parliament  was  not  declared  in  any  formal  statement, 
nor  was  the  king  required  to  acknowledge  that  his 
powers  were  limited  or  derived  from  the  people.  So 
far  as  formal  pledges  are  concerned,  or  formal  state- 
ments even,  with  which  the  new  government  began, 
there  was  nothing  to  indicate  that  anything  of  a  consti- 
tutional character  had  happened  since  the  first  of 
November,  1641. 

Much  had  happened,  however,  which  affected  the 
minds  of  men  and  which  could  not  be  forgotten. 


142  OUTLINE  SKETCH  OF  ENGLISH 

Charles's  statement  that  he  had  no  wish  to  go  on  his 
travels  again  is  not  of  chief  interest  as  the  sign  of  a 
cynical  character.  It  was  his  expression  of  a  profound 
political  observation  which  judged  correctly  the  actual 
state  of  things.  Charles  knew  that  a  great  constitutional 
change  had  taken  place,  though  perhaps  he  could  not 
have  called  it  that  nor  defined  very  clearly  its  nature. 
What  he  did  know  very  assuredly  was  that  he  could  not 
resist  the  will  of  Parliament  beyond  a  certain  point,  and 
by  that  knowledge  he  shaped  his  conduct.  It  was  not 
that  he  was  any  more  willing  than  his  father  to  submit 
to  the  authority  of  Parliament  or  any  the  less  determined 
to  reestablish  an  irresponsible  royal  power.  He  had  a 
keener  political  insight  and  recognized  more  quickly  the 
limits  of  the  possible  and  understood  the  consequences 
of  overstepping  them.  And  so  when  a  Parliament, 
which  was  usually  ready  to  do  what  he  wished,  objected 
strenuously  when  he  undertook  to  relieve  the  non- 
conformists of  their  legal  disabilities  by  proclamation, 
he  yielded  and  withdrew  from  his  attempts. 

Such  an  act  on  the  part  of  the  king  was  highly  typical 
of  the  actual  situation  as  it  had  been  left  by  the  Restora- 
tion, not  in  law  or  formal  statement,  but  in  the  facts 
themselves.  In  form  and  law  the  king  was  supreme 
and  sovereign.  In  fact  Parliament  was  supreme.  The 
sovereignty  in  the  state,  the  power  of  final  decision  on 
every  political  question,  if  an  issue  arose  upon  it,  had 


CONSTITUTIONAL  HISTORY  143 

been  transferred  to  it.  Never  since  that  date  has  it 
been  possible  for  the  king,  so  long  as  the  king  remained 
the  real  executive,  nor  for  the  ministry  after  the  cabinet 
had  absorbed  the  executive  authority,  to  withstand  the 
convinced  will  of  Parliament.  No  period  of  later  history, 
not  even  the  most  modern,  reveals  this  result  more 
clearly  than  that  which  followed  first,  in  which  the 
attempt  of  Charles  I's  sons  to  reestablish  the  old  royal 
power  met  with  disastrous  failure. 

The  result  in  1660  just  described  was  a  compromise; 
not  less  truly  a  compromise  because  it  was  expressed  in 
facts  rather  than  in  words.  The  question  which  had 
arisen  at  the  beginning  of  the  reign  of  James  I,  whether 
it  would  be  possible  to  make  the  strong  monarchy  of  the 
sixteenth  century  and  the  strong  Parliamentary  control 
of  the  fifteenth  work  together  in  practice;  what 
boundary  line  could  be  found  between  king  and  consti- 
tution, had  been  answered  by  the  discovery  of  a  com- 
promise. But  it  was  a  compromise  of  a  peculiar  type. 
As  developed  in  the  next  hundred  and  fifty  years,  it 
meant  that  form  and  appearance  remained  with  the  king, 
the  reality  with  Parliament.  The  words  in  which  the 
modern  constitutional  lawyer  states  the  result  are  as 
accurate  as  can  be  found:  "Sovereignty  resides  in  the 
king  in  his  Parliament."  The  king  is  in  theory  sover- 
eign, but  his  sovereignty  can  be  declared  and  exercised 
only  in  Parliament.  The  king  gave  up  the  power  to 


144  OUTLINE  SKETCH  OF  ENGLISH 

determine  by  his  individual  will  the  policy  of  the  state, 
but  the  surrender  was  disguised  by  an  appearance  of 
power  and  for  a  long  time  by  the  exercise  of  very  sub- 
stantial powers  and  the  permanent  possession  of  im- 
portant rights  and  influence.  It  was  more  than  a 
hundred  years  before  all  that  the  compromise  implied 
was  clearly  recognized  and  the  balance  established  at 
its  present  level.  But  it  was  really  made  in  1660. 

In  the  history  of  government  in  the  world  no  event 
has  ever  happened  of  greater  significance  or  of  wider 
influence  than  the  making  of  this  compromise.  Upon 
it  depended  the  spread  of  the  English  constitution 
throughout  the  civilized  world  which  is  one  of  the  chief 
characteristics  of  the  nineteenth  century,  even  if  it 
should  in  the  end  prove  that  constitutional  monarchy 
is  only  a  halfway  house  on  the  road  to  ultimate  democ- 
racy. In  this  respect  it  is  difficult  to  overstate  the 
influence  of  this  compromise.  Had  the  course  of  English 
history  led  to  a  constitution  in  which  in  form  and  law 
the  ministry  was  directly  responsible  to  Parliament 
instead  of  to  the  king,  not  merely  would  it  have  been 
immensely  more  difficult  to  reconcile  the  sovereign  to 
a  loss  of  the  substance  of  power,  but  the  adoption  of  the 
constitution  by  other  and  unwilling  monarchies  would 
have  been  made  a  practical  impossibility.  The  com- 
promise feature  of  the  present  constitution  by  which  in 
theory  and  in  form  the  ministry,  though  supreme,  seems 


CONSTITUTIONAL  HISTORY  145 

to  be  the  creature  of  the  king  and  responsible  to  him, 
would  have  had  no  existence.  The  choice  which  in  that 
case  a  successful  revolution  might  offer  to  a  sovereign 
between  a  formal  direct  responsibility  of  all  the  organs 
of  actual  government  to  the  legislative  assembly  on  one 
side,  and  an  out-and-out  republic  on  the  other,  would 
have  had  no  particular  attractiveness  or  significance. 
The  world  influence  of  the  English  constitution  depended 
for  its  existence  upon  the  fact  that  Parliament  came  to 
control  the  actual  government  in  fact  rather  than  in 
form,  indirectly,  not  directly;  that  an  actual  republic 
was  concealed  under  all  the  ceremonial  and  theoretical 
forms  of  a  continued  monarchy. 

If  Charles  II  knew  that  Parliament  was  in  reality 
supreme,  he  had  no  intention  of  allowing  that  result  to 
develop  undisputed  into  the  permanent  constitution 
of  the  state.  With  more  than  average  political  skill  and 
aided  by  the  course  of  events,  by  the  plans  of  Louis  XIV 
on  the  continent,  and  by  the  disorganization  of  the 
opposition  at  home,  he  was  able  in  the  twenty-five  years 
of  his  reign  to  accomplish  much.  But  to  rule  as  freely 
as  he  wished,  he  found  it  necessary  at  last  to  rule  with- 
out a  Parliament,  and  during  the  last  five  years  of  his 
reign  the  houses  were  not  called  together.  The  practical 
power  which  in  these  ways  he  gathered  into  his  hands, 
evading  the  check  of  Parliament  upon  him,  and  some- 
times evading  the  knowledge  even  of  his  own  ministers, 


146  OUTLINE  SKETCH  OF  ENGLISH 

has  been  said  by  a  student  of  those  times  to  have  been 
greater  than  that  exercised  at  any  time  by  the  Tudor 
sovereigns.  But  it  was  still  a  practical  power,  not  a 
constitutional.  The  problem  before  Charles  and  his 
brother,  who  succeeded  him,  was  the  same  as  before  the 
Angevin  sovereigns  of  the  twelfth  and  thirteenth 
centuries:  whether  it  would  be  possible  to  vest  in  insti- 
tutions an  existing  practical  absolutism  and  make  it 
constitutional.  Charles's  premature  death  gave  him  no 
opportunity  to  make  the  trial. 

James  II  began  with  everything  in  his  favor:  the 
practical  power  handed  on  to  him  by  his  brother;  the 
sympathy  and  favorable  disposition  of  the  nation;  a 
disorganized  and  discouraged  opposition;  a  Parliament 
ready  to  do  anything  in  reason  which  he  wished,  and 
yet  he  proceeded  so  hastily  and  with  so  little  judgment 
towards  his  ultimate  goal,  which  could  be  reached  only 
by  slow  and  cautious  approach,  that  within  three  years 
he  had  destroyed  all  his  advantages  and  turned  the 
whole  nation  against  him.  It  was  no  doubt  a  religious 
motive,  the  desire  to  give  Catholicism  a  better  position 
in  England,  that  urged  James  on,  but  the  means  which 
he  employed  and  the  results  which  unintentionally  he 
accomplished  were  constitutional.  The  suspension  or 
virtual  annulment  of  the  law,  so  that  Catholics  might 
be  appointed  to  office  in  the  state,  in  the  army,  and  even 
in  the  church,  and  all  their  disabilities  be  removed;  the 


CONSTITUTIONAL  HISTORY  147 

reestablishment  of  the  arbitrary  ecclesiastical  Court  of 
High  Commission;  the  violent  attack  on  established 
rights  seen  in  the  case  of  the  university  of  Oxford;  the 
attempt  to  use  the  courts  as  the  instruments  of  his  will ; 
and  the  collection  of  a  large  army  in  the  neighborhood 
of  London  with  which  opposition  might  be  overawed, 
so  clearly  revealed  the  designs  of  James  that  all  parties 
united  in  an  invitation  in  the  summer  of  1688  to  William, 
Prince  of  Orange,  the  husband  of  James's  daughter,  to 
come  to  their  relief.  Even  the  party  which  believed 
in  the  divine  right  of  kings  and  which  had  been  urging 
that  all  resistance  to  the  constituted  sovereign  authority 
was  sinful,  joined  the  others  in  this  invitation. 

The  revolution  which  followed,  long  known  as  "the 
Glorious  Revolution,"  was  sudden,  bloodless  and  com- 
plete. James 's  power,  which  had  seemed  great,  suddenly 
crumbled  to  nothing.  Scarcely  one  was  found  who 
dared  or  wished  to  maintain  his  cause.  The  ground  was 
swept  clean  for  the  Convention  Parliament,  and  it  was 
free  to  frame  into  specific  provisions  of  the  law  the 
principles  upon  which  the  Revolution  had  acted,  for 
neither  William  nor  his  wife  could  lay  any  claim  to  the 
throne  by  divine  right  or  by  any  right  except  the  will 
of  the  nation.  The  nation's  right  through  its  chosen 
representatives  to  depose  the  sovereign  who  would  not 
keep  the  law  and  to  determine  among  all  the  possible 
heirs  of  the  crown  who  should  reign  in  his  place,  came 


148  OUTLINE  SKETCH  OF  ENGLISH 

here,  so  many  centuries  after  the  principle  on  which  it 
rested  was  first  laid  down,  to  its  most  complete  expres- 
sion. Not  that  it  was  here,  any  more  than  in  Magna 
Carta,  expressed  in  formal  law.  No  government  is 
likely  to  provide  in  constitutional  enactment  for  its  own 
overthrow.  But  it  was  expressed  in  facts  and  is  the 
principle  of  right  on  which  the  Revolution  rested  and 
its  justification. 

With  careful  observance  of  every  form  that  could  be 
observed,  with  just  as  little  extra-legal  or  revolutionary 
action  as  was  possible,  going  even  to  the  extent  of  main- 
taining that  James  had  abdicated  the  throne,  the  Con- 
vention Parliament  laid  down  the  terms  on  which 
monarchy  would  be  reestablished  in  the  person  of 
James's  son-in-law  and  eldest  daughter,  William  and 
Mary,  and  required  their  consent  to  them.  In  that  sense 
the  Bill  of  Rights,  in  which  these  terms  were  finally 
enacted,  becomes  more  nearly  a  constituent  constitu- 
tional document  than  any  other  in  English  history. 
It  is  not  however  a  constitution  in  the  American  sense, 
nor  in  the  sense  of  the  Independents  of  1653.  It  does 
not  affirm  the  sovereignty  of  the  people  or  of  Parlia- 
ment. It  says  nothing  of  the  fundamental  rights  by 
virtue  of  which  conditions  may  be  made  with  the  king 
before  he  is  allowed  to  reign,  or  limitations  placed  upon 
his  exercise  of  power.  It  does  not  describe  nor  define  the 
organs  of  government  nor  lay  them  out  in  a  detailed 


CONSTITUTIONAL  HISTORY  149 

plan.  It  concerns  itself  only  with  the  immediate 
practical  purpose  and  deals  only  with  those  dangers 
against  which  the  experience  of  the  past  thirty  years 
had  shown  it  was  necessary  to  guard.  And  yet  in  the 
historical  explanation  which  accounts  for  its  existence, 
in  its  logical  meaning  and  necessary  implications,  and 
in  the  fundamental  principles  by  which  alone  it  can  be 
justified,  it  includes  all  that  it  omits. 

It  should  be  remembered  also  that  the  Bill  of  Rights, 
considered  as  a  constitutional  enactment,  affirmed  in 
more  specific  language  than  any  earlier  document  the 
underlying  fact  of  English  constitutional  development, 
that  the  king  has  no  right  to  violate  the  fundamental 
laws  of  the  kingdom.  To  be  sure  the  Bill  does  not  say 
this  in  set  terms,  but  by  unavoidable  inference.  In  the 
preamble,  after  enumerating  the  arbitrary  acts  of  James, 
it  continues :  ' '  All  which  are  utterly  and  directly  con- 
trary to  the  knowne  lawes  and  statutes,  and  the  free- 
dome  of  this  realme. "  And  in  the  body  of  the  Bill  the 
same  acts  are  declared  to  be  illegal.  The  Bill  is  also  as 
clearly  a  contract  between  the  king  and  the  nation  as 
the  charters  of  Henry  I  and  John  were  between  the  king 
and  the  barons,  though  there  was  in  the  seventeenth 
century  no  reminiscence  of  a  feudal  contract.  It  is 
made  evident  in  the  Bill,  though  again  not  expressly 
affirmed,  that  it  is  in  consequence  of  their  recognition 
of  the  illegality  of  James's  acts  that  William  and  Mary 


150  OUTLINE  SKETCH  OF  ENGLISH 

are  accepted  as  reigning  sovereigns.  In  these  respects 
the  Revolution  of  1688  and  the  Bill  of  Rights  mark  the 
culmination  of  English  constitutional  development. 
The  foundations  upon  which  the  constitution  rests,  the 
supremacy  of  the  law,  the  sovereignty  of  the  nation,  are 
never  again  called  in  question.  All  the  later  progress 
consists  in  more  and  more  complete  application  of  these 
principles  in  actual  government,  the  more  complete 
carrying  of  them  out  in  practice. 

The  Revolution  of  1688  and  the  Bill  of  Rights  re- 
stored the  monarchy  with  constitutional  guarantees. 
The  arbitrary  measures  which  the  Stuarts  had  employed 
were  enumerated  in  specific  form,  declared  to  be  illegal, 
and  the  recognition  of  their  illegality  by  the  king  made 
the  condition  of  the  possession  of  the  throne.  The  views 
of  the  constitution  with  which  James  I  had  begun  the 
century  were  therefore  repudiated  and  made  henceforth 
impossible.  But  the  democratic  extremes  of  the  Puritans 
were  equally  refused,  and  the  sanction  of  the  law  and 
of  practical  success  was  given  to  the  interpretation  of 
the  constitution  towards  which  Parliament  was  gradually 
working  from  1603  to  1642.  The  Bill  of  Rights  logically 
marks  the  end  of  this  great  age  of  constitutional  ad- 
vance, for  that  is  what  it  should  rightly  be  called.  It 
was  not  an  age  of  advance  in  institutions,  though  a 
considerable  enlargement  of  the  body  of  law  which  the 
king  must  obey  in  the  Bill  of  Rights  and  the  independ- 


CONSTITUTIONAL  HISTORY  151 

ence  of  the  judiciary,  omitted  probably  by  oversight 
and  enacted  a  few  years  later,  are  institutional  in 
character.  But  the  great  development  in  the  under- 
standing and  application  of  the  constitution  as  it  existed 
in  1603,  or  we  may  say  as  it  existed  in  all  its  larger  lines 
in  1399,  makes  the  seventeenth  century  a  great  age  of 
constitutional  advance. 


CHAPTER  IX 
THE  MAKING  OF  THE  CABINET 

The  reign  of  William  and  Mary  opens  a  new  and  a 
different  epoch  in  the  constitutional  history  of  England. 
The  Stuart  interpretation  of  the  constitution  was  never 
again  insisted  upon  by  any  English  king.  It  is  indeed 
a  little  more  than  two  hundred  years  before  any  question 
of  the  fundamental  meaning  of  the  constitution  becomes 
a  leading  one  for  the  nation  to  decide.  It  is  doubtful 
if  even  that  question — the  real  position  of  the  House  of 
Lords — should  be  considered  to  concern  the  fundamental 
meaning  of  the  constitution,  for  it  also  was  virtually 
decided  in  1688.  The  characteristic  of  the  new  age  was 
institution  making,  and  the  chief  institution  made  is 
beyond  all  question  one  of  the  most  important  of 
history,  we  may  perhaps  in  the  end  be  justified  in  saying 
the  most  important,  for  its  history  is  not  yet  finished. 
The  new  institution  was  the  English  cabinet,  meaning 
by  that  not  the  cabinet  as  a  mere  institution,  but  the 
cabinet  system  of  government :  the  cabinet  as  controlled 
by  the  doctrine  and  practice  of  ministerial  responsibility. 

To  understand  the  beginning  of  the  cabinet  system 


CONSTITUTIONAL  HISTORY  153 

we  must  go  back  to  the  Restoration  of  1660.  The 
Restoration  was,  as  we  have  seen,  a  compromise  by 
which  the  form  of  sovereignty  remained  with  the  king 
while  the  reality  was  transferred  to  Parliament.  If 
fully  carried  out  in  practice,  this  compromise  would 
mean  the  direct  supervision  and  control  of  all  lines  of 
government  policy  and  executive  action  by  the  legisla- 
tive assembly.  Such  an  arrangement  was  new  to  all 
human  experience  and  naturally  there  existed  no  ma- 
chinery by  which  it  could  be  carried  out  in  practice, 
no  institutional  forms  through  which  a  legislature  could 
exercise  an  executive  authority  which  in  theory  it  did 
not  have.  Constitutional  machinery  for  the  practical 
operation  of  the  compromise  must  be  devised,  and  the 
origin  and  growth  of  this  machinery  is  the  origin  and 
growth  of  the  cabinet  with  the  principle  of  ministerial 
responsibility  to  Parliament.  Or  we  may  state  the  fact 
in  another  way:  the  English  system  of  vesting  the 
executive  authority  in  a  cabinet  virtually  chosen  by  the 
legislature  and  held  under  a  close  control  by  it,  was  the 
method  finally  devised  to  carry  out  in  the  practical 
operation  of  the  government  of  the  country  the  sover- 
eignty of  Parliament  which  had  resulted  from  the  con- 
stitutional advance  of  the  seventeenth  century. 

It  would  be  absurd  to  suppose  that  the  men  of 
Charles  II's  reign,  or  any  later  reign,  were  conscious 
that  here  was  a  practical  problem  for  them  to  solve. 


154.  OUTLINE  SKETCH  OF  ENGLISH 

What  they  were  conscious  of  at  first  was  some  little 
difficulty  in  harmonizing  the  king's  policy  and  Parlia- 
ment's policy  upon  a  common  line  of  action,  and  such 
conscious  efforts  as  were  made,  as  in  Sir  William 
Temple 's  plan  for  a  reorganization  of  the  Privy  Council, 
were  directed  to  creating  a  mediating,  harmonizing  body 
between  these  two  great  powers.  These  conscious  efforts 
led  to  no  result.  So  far  as  any  progress  was  made  under 
Charles  II,  it  resulted  from  the  efforts  of  a  small  body 
of  ministers  who  were  in  the  confidence  of  the  king  and 
at  the  same  time  able  to  influence  the  action  of  Parlia- 
ment. The  earl  of  Clarendon,  who  was  for  a  time  one 
of  these  ministers,  has  described  their  methods  in  words 
which  are  especially  interesting  to  us  because  they 
might  be  used  almost  without  change  to  describe 
methods  employed  in  Washington  during  the  past  thirty 
years  in  efforts  to  bring  the  influence  of  the  President 
to  bear  on  legislation.  He  says:  "These  ministers 
[Clarendon  and  Southampton]  had  every  day  confer- 
ence with  some  select  persons  of  the  house  of  commons, 
who  had  always  served  the  king,  and  upon  that  account 
had  great  interest  in  that  assembly,  and  in  regard  of 
the  experience  they  had  and  their  good  parts  were 
hearkened  to  with  reverence.  And  with  those  they  con- 
sulted in  what  method  to  proceed  in  disposing  the  house, 
sometimes  to  propose,  sometimes  to  consent  to  what 
should  be  most  necessary  to  the  public ;  and  by  them  to 


CONSTITUTIONAL  HISTORY  155 

assign  parts  to  other  men,  whom  they  found  disposed 
and  willing  to  concur  in  what  was  to  be  desired :  and  all 
this  without  any  noise,  or  bringing  many  together  to 
design,  which  ever  was  and  ever  will  be  ingrateful  to 
parliaments,  and,  however  it  may  succeed  for  a  little 
time,  will  in  the  end  be  attended  with  prejudice. ' ' 

As  a  matter  of  fact,  the  king  was  still,  and  for  a  long 
time  after,  the  real  executive.  He  chose  his  own  minis- 
ters and  controlled  their  policy  and  did  not  concern 
himself  with  Parliament's  approval  of  them  nor  con- 
sistently with  Parliament's  approval  of  his  policy.  On 
its  side  Parliament  naturally  regarded  the  new  methods 
with  some  suspicion,  as  evidence  of  intrigue  in  the 
king's  interest,  but  it  knew  no  way  of  exercising  its 
power  of  final  decision  except  by  making  a  square  issue 
with  the  king,  nor  of  holding  the  king's  servant  respon- 
sible except  by  asserting  a  direct  responsibility  enforced 
by  the  old  practice  of  impeachment. 

The  situation  in  this  respect  was  not  changed  by  the 
Revolution  of  1688.  That  Revolution  was  not  a  decision 
as  to  particular  forms  or  machinery.  What  was  at  stake 
once  more  were  the  principles  which  underlay  all  forms, 
and  the  whole  nation  showed  that  it  was  determined 
to  maintain  the  settlement  of  1660  so  far  as  that  was 
a  settlement  of  the  fundamental  question  of  the  su- 
premacy of  Parliament.  But  we  may  be  sure  that  if 
satisfactory  constitutional  machinery  had  been  devised 


156  OUTLINE  SKETCH  OF  ENGLISH 

during  the  reign  of  Charles  II  for  exercising  that 
supremacy  in  practice,  it  would  have  been  included  in 
the  settlement  of  1689.  But  it  had  not  been,  and  indeed 
in  1689  it  was  only  the  fundamental  principle  of  Parlia- 
mentary supremacy  that  was  in  any  sense  apprehended. 
Neither  the  range  of  its  application  to  the  operation  of 
actual  government,  nor  the  method  of  its  application, 
was  yet  understood,  nor  was  the  latter,  which  is  the 
principle  of  ministerial  responsibility  applied  to  the 
cabinet,  clearly  understood  for  another  century. 

With  the  accession  of  William  III  this  fundamental 
question  at  issue  between  king  and  Parliament  was 
settled,  as  has  been  said,  never  to  be  raised  again.  The 
characteristic  feature  of  the  new  age  was  not  a  question 
of  that  kind,  nor  of  the  interpretation  of  the  constitu- 
tion, but  it  was  progress  upon  the  new  task  of  devising 
machinery  for  carrying  out  in  actual  government  the 
compromise  settlement  already  reached.  In  workable 
machinery  for  this  purpose,  the  age  of  William  III  made 
no  great  advance  over  that  of  Charles  II.  The  mediating 
body  still  consisted  of  a  small  and  informal  group  of 
ministers  who  enjoyed  the  confidence  of  the  king  and 
who  were  influential  in  Parliament.  The  king  still 
retained  a  very  decided  control  over  the  conduct  of 
government,  especially  in  foreign  affairs,  and  he  never 
dreamed  of  allowing  Parliament  any  voice,  direct  or 
indirect,  in  the  choice  of  his  ministers. 


CONSTITUTIONAL  HISTORY  157 

William  III  made,  however,  in  the  course  of  his  reign 
one  very  important  discovery  which  was  never  after- 
wards forgotten.  He  began  to  reign  with  a  desire  to  be 
king,  not  of  a  faction,  but  of  all  England,  and  as  what 
he  thought  would  be  a  harmonizing  measure,  he  chose 
to  have  a  coalition  ministry  made  up  from  both  political 
parties  at  once.  But  he  soon  found  out  that  the  easiest 
way  to  accomplish  the  objects  he  desired,  the  line  of 
least  resistance  in  carrying  out  his  policy,  was  to  choose 
his  chief  ministers  from  those  political  leaders  who  were 
best  able  to  secure  the  support  of  Parliament,  or  in 
other  words  from  that  party  which  had  a  majority  in 
the  House  of  Commons. 

This  was  a  great  step  forward,  but  it  was  not  yet  a 
matter  of  principle.  No  one  supposed  it  to  be  more  than 
a  mere  matter  of  convenience,  and  a  long  time  passed 
before  its  real  meaning  began  to  be  understood.  It  was 
in  truth  the  beginning  of  the  principle  of  ministerial 
responsibility  with  all  its  applications  in  the  present 
constitution.  It  was  from  this  origin  that  modern 
ministerial  responsibility  arose,  gradually  and  unper- 
ceived,  and  not  from  the  medieval  idea  or  practice.  The 
medieval  was  for  some  time  supposed  to  continue  along- 
side the  new  growth,  unconnected  with  it,  rather  as 
opposed  to  it,  for  the  older  method  of  impeachment  was 
still  thought  to  be  the  only  means  which  Parliament  had 
of  controlling  the  king's  ministers. 


158  OUTLINE  SKETCH  OF  ENGLISH 

Parliament  indeed  under  William  was  again  greatly 
troubled  by  the  signs  of  this  new  development  which  it 
could  see  was  going  on  but  could  not  understand.  The 
government 's  policy  seemed  to  be  determined  by  a  secret 
clique  of  ministers  upon  whom  it  was  difficult  to  fix 
responsibility.  Not  long  after  the  accession  of  William 
and  Mary,  the  House  of  Commons  began  to  debate 
methods  of  holding  the  government  responsible  and 
found  no  satisfactory  means.  Impeachment  seemed  to 
be  slipping  out  of  its  hands  and  nothing  taking  the  place. 
Parliament  really  was  losing  impeachment  because  it 
was  no  longer  needed  or  in  place.  The  future  struggles 
of  English  history  were  not  to  be  between  king  and 
Parliament  over  the  establishment  of  the  constitution, 
or  over  its  meaning,  but  they  were  to  be  over  purpose 
and  policy  in  the  daily  operation  of  the  government 
between  the  leaders  of  groups  of  opinion  in  the  nation 
whose  equal  loyalty  to  the  constitution  was  uncon- 
sciously accepted  early  in  this  period.  In  such  a  situa- 
tion it  was  instinctively  felt  that  it  was  an  unworthy 
use  of  a  party  advantage  to  subject  the  leaders  of  the 
opposition  side  to  a  criminal  prosecution  and,  though  it 
was  not  yet  seen  what  could  be  used  in  its  place .  to 
enforce  responsibility,  impeachment  was  tacitly  dropped. 
How  wholly  unconscious  was  the  real  development 
which  was  going  on  at  that  time  is  strikingly  recorded 
in  the  Act  of  Settlement  of  the  last  year  of  William's 


CONSTITUTIONAL  HISTORY  159 

reign.  In  clauses  four  and  six  of  that  document  Parlia- 
ment attempted  to  destroy  the  beginnings  of  the  cabinet 
system  in  order  to  protect  what  it  believed  to  be  its  means 
of  enforcing  responsibility  and,  if  those  clauses  had  been 
put  into  force,  would  have  succeeded.  Clause  four 
required  that  all  conciliar  business  should  be  transacted 
in  the  Privy  Council  and  not  elsewhere,  that  is,  not  by 
the  suspected  clique  alone,  and  that  the  members  of  the 
Council  should  furnish  the  evidence  of  their  responsi- 
bility by  attaching  their  signatures  to  the  resolutions 
to  which  they  consented;  and  clause  six  forbad  the 
election  to  the  House  of  Commons  of  any  officers  of  the 
crown,  including  of  course  the  ministers.  That  is  to  say, 
Parliament  had  so  little  conception  of  how  best  to  realize 
its  own  supremacy  that  it  deliberately  tried,  in  the 
interest  of  an  obsolete  method,  to  end  the  line  of  progress 
which  was  bringing  in  the  most  effective  means  ever 
devised,  or  apparently  devisable,  for  operating  a  republic 
under  the  forms  of  a  monarchy. 

It  was  in  this  stage  of  the  development  of  cabinet 
government  that  the  house  of  Hanover  came  to  the 
throne.  George  I  never  ceased  in  any  respect  to  be  a 
German  and  he  cared  little  about  the  character  of  Eng- 
lish government  and  understood  the  constitution  and 
constitutional  tendencies  even  less.  George  II  had  a 
greater  interest  in  his  British  kingdom  and  a  clearer 
idea  of  what  was  going  on  in  government,  but  he  did  not 


160  OUTLINE  SKETCH  OF  ENGLISH 

know  how  to  interfere  with  the  natural  growth  of  ten- 
dencies which  were  in  full  course  when  he  came  to  the 
throne.  As  a  result  the  forty-five  years  of  these  two 
reigns  is  a  long  period  of  unbroken  development  in  the 
history  of  cabinet  government.  Nearly  half  the  time  is 
covered  by  the  ministry  of  Sir  Robert  Walpole,  a  time 
of  peace  and  of  unnoticed  growth.  Walpole  was  not 
merely  the  first  prime  minister  but  the  first  minister 
who  had  something  like  a  clear,  though  no  doubt  largely 
unconscious,  idea  of  the  character  of  the  machinery  for 
government  which  was  forming  and  of  the  principles 
according  to  which  it  should  be  consistently  operated. 
The  fact  that  George  I  did  not  understand  English  shut 
him  out  of  the  consultations  of  the  cabinet,  and  George 
II  did  not  seriously  attempt  to  restore  the  king's  right 
to  attend.  Decision  of  government  policy  in  the  absence 
of  the  king  and  without  his  knowledge  made  abundantly 
clear  the  sole  responsibility  of  the  cabinet  for  the  con- 
duct of  public  affairs,  and  Walpole  saw  that  this  state 
of  things  should  require  the  cabinet  to  be  a  unit  in  policy 
and  collectively  responsible.  He  had  some  difficulty  in 
applying  this  principle  strictly,  and  other  prime  minis- 
ters after  him,  and  it  was  not  until  the  beginning  of 
the  nineteenth  century  that  it  came  to  be  rigorously  ob- 
served and  a  commonplace  of  thinking  about  government. 
Walpole  was  also  the  first  minister  who  consciously 
perceived  the  relation  which  should  subsist  between  the 


CONSTITUTIONAL  HISTORY  161 

cabinet  and  the  majority  in  the  House  of  Commons. 
He  was  the  first  to  organize  that  majority  in  something 
like  an  official  way  and  to  act  upon  the  logical  conclusion 
that  when  he  lost  the  majority  he  must  resign.  The 
progress  was  rapid  under  Walpole  and  it  continued  after 
his  fall.  Its  character  is  further  indicated  by  the  fact 
that  in  1746  Lord  Granville  failed  in  the  attempt  to 
form  a  cabinet  because  he  could  not  bring  together  a 
body  of  men  to  act  with  him  who  would  command  the 
support  of  Parliament,  and  also  by  the  fact  that  in  the 
same  year  the  king  was  forced  under  pressure  and 
against  his  will  to  admit  William  Pitt  to  the  ministry. 
These  are  full-grown  characteristics  of  the  modern 
cabinet,  but  cabinet  government  was  not  yet  complete 
nor  perfectly  understood  by  anyone  at  the  middle  of 
the  eighteenth  century.  The  first  thirty  years  of  George 
Ill's  reign  revealed  how  much  was  still  to  do. 

George  III  came  to  the  throne  in  1760  as  a  young  man 
of  most  decided  convictions  and  intentions.  He  had 
been  trained  by  his  mother  to  be  a  king  in  the  highest 
Tory  sense,  and  he  possessed  by  nature  a  degree  of 
obstinate  short-sightedness  sufficient  to  prove  his  Stuart 
descent.  It  was,  however,  not  the  policy  of  the  elder 
Stuarts  which  George  attempted  to  carry  out.  It  was 
the  cabinet  system  of  government  which  he  attacked  and 
it  was  that  which  he  failed  to  overthrow.  If  neither  he 
nor  his  contemporaries  understood  that  system  as  com- 


J 


162  OUTLINE  SKETCH  OF  ENGLISH 

pletely  as  we  do,  he  understood  at  least  what  its  growth 
had  cost  the  crown,  and  this  is  what  he  set  about  to 
recover.  What  might  have  been  the  ultimate  result 
of  his  attempt  if  it  had  been  successful,  it  does  not 
belong  to  the  historian  to  say,  though  it  is  difficult  to 
see  how  constitutional  liberty  could  have  survived  if 
he  had  been  completely  successful.  But  his  immediate 
plans  as  he  developed  them  went  no  farther  than  to 
reestablish  the  degree  of  control  over  the  policy  of  the 
government  which  William  III  had  possessed. 

He  was  at  first  successful.  By  forcing  devoted  adher- 
ents of  his  own  into  the  cabinet  which  he  had  inherited 
from  his  grandfather,  the  cabinet  of  the  great  war 
minister  William  Pitt;  by  creating  a  strong  influence 
of  "king's  friends"  in  the  House  of  Commons,  inde- 
pendent of  the  cabinet;  and  finally  by  finding  a  prime 
minister  in  the  person  of  Lord  North  whose  private 
conviction  regarding  the  relation  of  minister  and  crown 
agreed  with  his  own,  he  did  succeed  in  recovering  for 
a  time  a  decided  royal  influence  over  the  policy  of  the 
government.  The  highest  point  of  this  success  was  the 
ministry  of  Lord  North  from  1770  to  1782.  The  price 
which  was  paid  for  it  was  the  loss  of  the  American 
colonies. 

Had  cabinet  government  been  understood  at  that  time 
as  it  was  a  century  later,  had  ministerial  responsibility 
of  the  modern  type  existed  then,  it  is  hardly  an  exaggera- 


CONSTITUTIONAL  HISTORY  163 

tion  to  say  that  the  American  Revolution  would  not 
have  occurred.  It  is  at  any  rate  open  to  belief  that  if 
ministerial  and  Parliamentary  opinion  had  been  free 
to  form  in  view  of  the  facts  alone,  some  workable 
compromise  could  have  been  found  between  opposing 
interests,  neither  of  which  desired  at  first  extreme 
measures. 

The  failure  of  the  king's  policy  to  compel  the  return 
of  the  colonies  to  their  allegiance  was  also  the  failure  of 
his  policy  to  control  the  cabinet,  not  at  once  nor  while 
he  lived  with  absolute  completeness,  but  so  completely 
that  after  the  fall  of  Lord  North  there  was  no  longer 
any  possibility  of  accomplishing  the  plan  with  which  he 
had  set  out.  This  fact  it  is  which  has  led  Englishmen 
to  say  that  Washington  ' '  by  his  military  conduct  of  the 
War  of  the  American  Revolution  saved  English  consti- 
tutional liberty,  as  well  as  won  American  independence. ' ' 
The  final  subjection  of  the  executive  to  the  legislature 
in  all  respects,  never  again  to  be  seriously  resisted,  may 
be  dated  from  the  end  of  Lord  North's  ministry  in  1782. 
The  few  individual  exceptions  which  occurred  after  that 
date  are  cases  in  which  the  cabinet  and  the  legislature 
yielded  to  the  nominal  executive,  not  on  principle,  but 
because  it  did  not  seem  advisable  or  worth  while  to  make 
an  issue  on  the  particular  point. 

One  incident,  coming  only  a  few  weeks  after  the 
signature  of  the  peace  with  the  United  States,  might  be 


164  OUTLINE  SKETCH  OF  ENGLISH 

cited  as  evidence  of  the  continued  power  of  the  king, 
but  it  is  really  more  significant  of  other  things.  In 
December,  1783,  George  III  suddenly  dismissed  the 
coalition  ministry,  to  which  he  had  been  obliged  to 
submit  against  his  will,  on  their  being  defeated  in  the 
House  of  Lords,  although  they  still  had  a  good  majority 
in  the  House  of  Commons.  The  younger  William  Pitt, 
then  twenty-five  years  of  age  and  just  entering  upon  his 
great  career,  consented  to  form  a  ministry  in  support 
of  the  king.  With  an  overwhelming  majority  against 
him,  the  new  prime  minister  began  a  severe  and  dramatic 
struggle  with  the  House  of  Commons  which  lasted  for 
more  than  three  months.  He  stood  almost  alone.  He 
was  the  only  member  of  the  cabinet  in  the  House  of 
Commons.  All  the  leaders  of  debate  and  brilliant 
orators  of  the  House,  in  that  most  brilliant  period  of 
House  of  Commons  oratory,  were  against  him.  The 
business  of  Parliament  was  at  a  standstill.  The  passing 
of  the  appropriations  and  of  the  annual  mutiny  bill 
was  postponed,  and  from  that  date  it  has  been  under- 
stood that  the  Parliamentary  weapon  compelling  the 
appointment  of  a  minister  of  its  choice  is  the  refusal  to 
do  business  with  any  other. 

But  Pitt  maintained  his  position  boldly  with  the  king 's 
support.  Twelve  successive  votes  were  passed  against 
him  by  the  Commons,  any  one  of  which  would  now  be 
thought  sufficient  to  compel  the  resignation  of  the 


CONSTITUTIONAL  HISTORY  165 

cabinet.  The  insistent  demand  that  he  should  resign 
and  the  anger  occasioned  by  his  refusal  to  do  so,  fixed 
firmly  in  the  public  consciousness  the  duty  of  a  ministry 
to  give  up  office  on  an  adverse  vote  in  the  House  of 
Commons.  Since  the  time  of  Pitt  no  minister  has  been 
able  to  maintain  himself  in  a  like  situation,  and  it  is 
hardly  probable  that  Pitt  could  even  then  have  done  so, 
if  public  opinion  outside  Parliament  had  not  been  turn- 
ing in  his  favor.  The  change  of  feeling  was  steadily 
reflected  in  a  dwindling  majority  in  the  House,  and 
finally  on  a  defeat  by  a  majority  of  one  only,  he  dis- 
solved Parliament  and  appealed  to  the  country  in  a 
general  election.  The  country  returned  him  a  great 
majority  and  his  ministry  of  nearly  twenty  years  was 
securely  begun. 

Pitt's  struggle  to  maintain  himself  against  a  hostile 
House  of  Commons  had  great  influence  in  bringing 
about  an  understanding  of  cabinet  government  and  the 
principle  of  ministerial  responsibility,  but  that  under- 
standing was  still  far  from  complete  and  was  only  slowly 
perfected  through  another  twenty-five  years.  Two  inci- 
dents between  1784  and  the  close  of  the  century  show 
how  incomplete  the  understanding  still  was.  Three 
years  after  Pitt's  triumph  the  Constitution  of  the 
United  States  was  framed  by  an  assembly  of  the  most 
experienced  public  men  and  students  of  politics  in 
America,  who  considered  with  care  the  question  of 


166  OUTLINE  SKETCH  OF  ENGLISH 

setting  up  a  government  to  operate  in  the  best  way. 
One  great  problem  before  them,  set  by  the  situation  of 
the  time,  was  to  secure  a  really  effective  executive  while 
leaving  ultimate  authority  in  the  legislature  as  repre- 
senting the  people,  exactly  the  problem  which  ministerial 
responsibility  solves.  In  their  constitution,  however, 
not  merely  did  they  entirely  separate  the  executive  and 
legislative  departments,  then  becoming  closely  united  in 
England,  but  they  gave  little  attention  to  the  cabinet, 
and  they  seem  to  have  had  no  idea  whatever  of  minis- 
terial responsibility. 

If  we  may  judge  by  the  powers  conferred  upon  the 
president  in  the  Constitution  and  the  fact  that  the 
cabinet  is  not  mentioned,  merely  referred  to  in  passing 
in  the  phrase  ' '  the  principal  officer  in  each  of  the  execu- 
tive departments, ' '  their  idea  of  the  head  of  the  state  and 
his  relation  to  his  cabinet  seems  to  have  been  that  which 
George  III  had  made  familiar  to  them  during  the  min- 
istry of  Lord  North ;  I  do  not  mean  that  they  consciously 
thought  about  it,  but  that  this  is  the  idea  which  they 
would  instinctively  have.  It  is  altogether  probable  that 
they  thought  that  in  this  respect  they  were  following  the 
English  model,  as  beyond  question  they  did  when  they 
adopted  impeachment,  and  certainly,  had  there  existed 
in  England  any  such  definite  idea  of  ministerial  respon- 
sibility as  fifty  years  later,  there  would  have  been  some 
discussion  of  it  in  the  Convention. 


CONSTITUTIONAL  HISTORY  167 

The  other  incident  is  even  more  indicative  of  English 
understanding.  In  1791  Parliament  under  the  leader- 
ship of  Pitt's  ministry  framed  a  new  government  for 
Canada.  The  debate  on  the  bill  shows  conclusively  that 
the  desire  was  to  give  to  Canada  the  same  kind  of 
government  which  England  had,  and  there  can  be  no 
question  but  that  this  was  honestly  intended.  And  yet 
no  responsible  ministry  was  granted,  nor  even  proposed, 
and  the  foundation  was  laid  for  the  later  Canadian 
rebellion  which  opened  a  new  era  in  British  colonial 
government. 

It  is  from  the  opening  years  of  the  nineteenth  century 
that  we  must  date  a  full  understanding  of  the  cabinet 
system  and  of  the  way  in  which  ministerial  responsibility 
is  enforced  through  it,  though  even  then  the  under- 
standing was  rather  that  of  practical  action  than  of 
theoretical  description.  It  was  not  until  about  the 
middle  of  the  century  that  descriptions  of  the  system 
were  written  that  seem  satisfactory  to  us,  and  well  past 
the  middle  before  any  treatise  was  published  upon  the 
new  constitution  as  a  whole. 


CHAPTER  X 
THE  RISE  OF  DEMOCRACY 

While  cabinet  government  was  developing  during  the 
long  reign  of  George  III,  from  1760  to  1820,  change  of 
another  sort  was  taking  place  in  England  which  had 
most  important  constitutional  consequences  and  may  in 
the  end  affect  the  nature  of  cabinet  government  itself. 
If  so,  the  future  historian  will  undoubtedly  describe  this 
change  as  opening  a  new  epoch  in  England's  constitu- 
tional history  as  truly  as  did  the  accession  of  the  house 
of  Lancaster  or  the  house  of  Stuart.  The  change  which 
took  place  was  the  economic  revolution  which  began 
about  the  middle  of  the  eighteenth  century  and  its 
effects  upon  population  and  opinion.  Within  a  few 
years  of  one  another  a  series  of  discoveries,  inventions, 
and  favoring  events  combined  together  to  create  a  new 
industrial  age.  The  application  of  steam  to  machinery; 
the  invention  of  new  machinery  to  which  steam  could 
be  applied,  especially  in  the  manufacture  of  cloth ;  the 
opening  up  of  great  stores  of  coal  to  make  easy  the  pro- 
duction of  steam  and  iron;  improved  methods  of  smelt- 
ing iron  ore  to  meet  the  demand  made  by  the  increased 


CONSTITUTIONAL  HISTORY  169 

use  of  machinery ;  better  means  of  transportation  for  raw 
material  and  manufactured  goods;  and  the  expanding 
markets  which  followed  the  peace  with  France  in  1763, 
all  worked  together  to  one  end,  an  unparalleled  indus- 
trial development. 

But  the  industrial  change  brought  with  it  changes  in 
population  and  in  attitude  towards  political  questions. 
Cottage  and  village  industries  disappeared.  Great 
factories  grew  up  and  concentrated  population.  New 
large  towns  were  formed  and  old  ones  grew  larger. 
Wealth  endowed  a  new  class  which  arose  from  among 
the  manufacturers  or  from  families  not  prominent 
before  to  take  their  place  in  popular  influence  beside 
the  old  aristocracy.  A  new  political  atmosphere  began 
to  form  in  large  portions  of  the  country.  The  new  forces 
which  were  beginning  to  make  themselves  felt  were  less 
bound  by  old  ideas,  more  ready  to  change,  inclined  even 
to  be  radical,  and  deeply  interested  in  certain  reform 
demands  which  affected  their  position  in  the  state  or 
their  local  conditions.  The  political  change  which  re- 
sulted from  and  attended  the  economic  revolution  some- 
what slowly  developed  into  a  great  movement  towards 
a  democratic  control  of  government  and  of  all  public 
interests  which  has  gone  on  constantly  widening  and 
deepening  from  that  day  to  this  and  constantly 
achieving  more  and  more  of  its  aims  in  the  management 
of  national  and  local  affairs. 


170  OUTLINE  SKETCH  OF  ENGLISH 

Historically  we  must  trace  the  transformation  of  Eng- 
land into  a  democracy  back  to  its  beginning  in  the  rise 
of  new  centers  of  population  with  new  and  pressing 
problems  to  be  solved  and  to  the  rise  of  new  classes 
demanding  political  opportunity  for  themselves.  But 
it  must  not  be  supposed  that  the  changes  which  this 
movement  has  brought  about  one  after  another  have 
been  revolutionary  in  character.  They  are  the  logical 
outgrowth,  the  consummation  in  practical  government, 
of  that  slow  drift  towards  the  sovereignty  of  the  people 
which  began  long  centuries  ago  in  English  history.  The 
Puritan  attempt,  in  a  revolutionary  atmosphere  and 
under  the  stimulus  of  radical  religious  thought,  to 
accomplish  these  ends  prematurely  led  to  failure  in 
England,  but  in  America  to  an  earlier  and  more  com- 
plete fulfillment  of  the  natural  tendencies  of  the  past. 
Now  early  in  the  nineteenth  century,  England  began  an 
approach  to  these  same  democratic  results,  slower  than 
would  have  satisfied  the  Independents,  but  rapid  as 
compared  with  the  intervening  generations. 

As  soon  as  the  close  of  the  struggle  with  Napoleon's 
attempt  at  world  empire  removed  a  natural  but  un- 
English  repression,  and  the  English  people  had  time  to 
fall  securely  back  into  the  normal  current  of  their  life, 
the  advance  began.  About  1828  there  opened  a  great 
epoch  of  reform  changes  which  has  continued,  with 
intervals  of  lessened  activity,  to  the  present  day,  an 


CONSTITUTIONAL  HISTORY  171 

epoch  not  merely  of  destructive  but  in  the  highest  sense 
of  constructive  legislation.  The  first  steps  taken  in  this 
process  were  towards  securing  religious  liberty  by  law. 
In  1828  the  most  serious  disabilities  of  Nonconformists, 
which  had  in  reality  long  been  obsolete,  were  removed. 
In  the  next  year  Catholics  were  given  throughout  Great 
Britain  practical  political  equality  with  Protestants, 
but  it  was  some  years  still  before  Jews  were  admitted 
to  Parliament  or  Nonconformists  on  equal  terms  to  the 
universities.  These  acts  were  speedily  followed  by  the 
extinction  of  Negro  slavery  in  the  colonies,  by  the 
adoption  of  free  trade,  and  by  the  beginning  of  the  slow 
process  of  reform  in  the  criminal  law,  in  the  organization 
and  procedure  of  the  courts  of  civil  law,  and  in  local 
government.  But  in  a  sense  these  acts  of  legislation, 
though  results  of  the  growing  influence  of  the  mass  of 
the  people  upon  government,  are  not  strictly  constitu- 
tional measures.  The  first  great  step  in  constitutional 
reform,  to  be  followed  in  time  by  the  most  far-reaching 
consequences,  was  the  passage  of  the  first  Reform  Bill 
in  1832.  The  history  of  this  bill  and  of  the  steps  by 
which  it  made  its  way  through  Parliament  illustrates 
in  so  many  ways  the  operation  of  the  English  cabinet 
and  Parliamentary  system  in  the  nineteenth  century 
that  it  should  be  told  in  some  detail. 

The  demand  for  reform  in  the  election  of  members 
of  the  House  of  Commons  had  really  been  felt  before 


172  OUTLINE  SKETCH  OF  ENGLISH 

the  long  war  with  France  which  began  in  1793.  No 
change  had  been  made  in  the  election  laws  since  the 
fifteenth  century,  and  members  were  still  elected  from 
the  counties  by  the  votes  of  the  holders  of  freehold  land 
of  the  annual  value  of  forty  shillings,  and  from  an 
arbitrary  list  of  boroughs,  long  regarded  as  fixed,  in 
which  the  right  of  suffrage  was  defined  in  widely 
varying  ways  as  each  borough  had  originally  determined 
for  itself.  Glaring  inequalities  had  always  existed  in 
the  relation  of  representation  to  population,  to,  some 
extent  in  the  counties  and  to  a  great  extent  in  the 
boroughs.  The  Puritan  reformers  had  dealt  with  this 
matter  in  the  modern  sense,  but  their  measures  were  not 
continued,  and  the  inequalities,  especially  in  the  case 
of  the  boroughs,  were  greatly  increased  by  the  changes 
in  population  which  followed  the  industrial  revolution. 
Large  new  towns  arose  which  had  no  representation. 
Old  boroughs  lost  population  heavily.  Worse  even  than 
this,  the  decline  of  population,  combined  with  limited 
rights  of  suffrage,  had  put  many  boroughs  sending 
members  to  the  House  of  Commons  completely  into  the 
hands  of  neighboring  great  landowners  who  either  con- 
trolled the  election  through  their  ownership,  the  so- 
called  pocket  boroughs,  or  found  it  easy  to  buy  the 
required  number  of  voters,  the  rotten  boroughs.  The 
duke  of  Norfolk  nominated  eleven  members  of  the  House 
of  Commons,  Lord  Lonsdale  nine,  Lord  Fitzwilliam 


CONSTITUTIONAL  HISTORY  173 

eight,  and  so  on.  Nearly  half  the  membership  of  the 
house  represented  in  this  way  private  interests  rather 
than  a  public  constituency. 

Near  the  end  of  the  eighteenth  century,  about  the  time 
the  war  with  France  began,  the  question  of  this  evil  had 
been  raised  in  Parliament,  and  hopeful  measures  for 
reform  were  under  way.  The  extremes  of  the  Revolution 
led  to  a  reaction  which  continued  for  some  years  after 
the  close  of  the  war,  but  with  the  beginning  of  reforms 
in  other  directions  this  too  was  taken  up.  Early  in 
November,  1830,  Earl  Grey,  who  had  been  a  leader  in 
the  eighteenth-century  attempt,  expressed  in  debate  in 
the  House  of  Lords  the  hope  that  this  reform  might  not 
be  long  delayed.  The  prime  minister,  the  duke  of 
Wellington,  answered  in  absurdly  extravagant  praise  of 
conditions  as  they  were,  saying  among  other  things  that 
if  he  had  been  called  upon  to  form  legislative  institu- 
tions for  any  country  he  could  not  hope  to  do  as  well, 
"for  the  nature  of  man  was  incapable  of  reaching  such 
excellence  at  once."  These  words  proved  the  spark 
which  fired  the  train  and  revealed  how  broadly  prepara- 
tion had  been  made  in  the  public  mind  for  a  decided 
change.  On  the  fifteenth  of  November  Wellington's 
ministry  was  defeated  in  the  House  of  Commons  and 
resigned.  The  king  sent  for  Earl  Grey  who  formed  a 
Whig  ministry  and  went  on  without  asking  for  a  new 
election.  The  House  of  Commons  had  nominally  a  Tory 


174  OUTLINE  SKETCH  OF  ENGLISH 

majority,  but  public  opinion  had  declared  itself  so 
clearly  for  reform  that  there  seemed  a  chance  of  securing 
a  majority  for  it  without  an  appeal  to  the  country. 

The  bill  was  introduced  on  the  first  of  March  by  Lord 
John  Russell,  who  for  twenty  years  had  advocated  a 
measure  of  the  kind  in  speeches  and  motions  in  the 
House  of  Commons.  It  passed  its  first  and  second  read- 
ings, but  on  the  second  reading  the  majority  in  its  favor 
was  only  one  in  a  vote  of  over  six  hundred.  In  Parlia- 
mentary practice  a  small  majority  on  the  second  reading 
is  considered  a  defeat.  The  passing  of  the  second 
reading  means  that  the  House  adopts  the  principle  of 
the  bill,  but  the  details  have  still  to  be  settled  in  com- 
mittee of  the  whole,  and  experience  shows  that  more 
members  are  ready  to  accept  the  general  principle  of 
any  measure  than  will  agree  together  on  all  the  details. 
This  proved  to  be  the  case  at  this  time,  and  on  the  nine- 
teenth of  April  the  cabinet  was  defeated  by  a  majority 
of  eight.  Then  the  ministry  appealed  to  the  country. 
Parliament  was  dissolved  and  a  new  election  ordered, 
which  was  held  with  electoral  reform  as  the  chief  issue 
of  the  campaign.  The  election  was  one  of  unusual 
excitement  and  of  clear  determination  on  the  part  of 
the  reformers.  Some  pocket  boroughs  even  were  carried 
against  their  owners,  and  a  great  majority  for  those  days 
was  secured  for  the  government.  So  quickly  was  all 
this  done  that  on  June  24  Lord  John  Russell  introduced 


CONSTITUTIONAL  HISTORY  175 

practically  the  same  bill  again,  and  its  second  reading 
was  carried  on  July  8  by  a  majority  of  one  hundred  and 
thirty-six,  and  on  September  21  it  was  finally  passed  by 
a  majority  of  one  hundred  and  nine.  The  House  of 
Lords  was  naturally  opposed  to  a  measure  which  seemed 
about  to  destroy  the  political  influence  of  the  aristoc- 
racy, but  the  reformers  made  a  brilliant  defence,  and 
it  was  only  after  one  of  the  ablest  debates  in  the  history 
of  the  House  that  the  bill  was  rejected  by  forty-one 
majority  in  a  vote  of  three  hundred  and  fifty-seven. 
The  defeat  of  a  government  measure  in  the  House  of 
Lords  does  not  call  for  the  resignation  of  the  ministry 
and,  sustained  by  a  vote  of  confidence  immediately 
passed  in  the  House  of  Commons,  the  cabinet  decided 
to  prorogue  Parliament  in  order  that  a  new  session 
might  allow  the  reintroduction  of  the  bill. 

In  the  interval  between  the  two  sessions  the  public 
excitement  reached  the  highest  point  that  had  ever 
attended  any  question  before  Parliament  or  perhaps 
that  has  ever  been  known  since  that  time.  All  measures 
familiar  to  English  and  American  politics  to  impress 
public  opinion  upon  the  legislature  were  employed, 
monster  meetings,  impassioned  speeches,  processions  and 
petitions,  newspaper  articles  and  pamphlets;  in  places 
there  was  even  rioting  by  the  more  radical  supporters 
of  the  bill  who  expected  larger  results  from  it  than  it 
really  produced.  The  House  of  Lords  met  in  the  new 


176  OUTLINE  SKETCH  OF  ENGLISH 

session  under  no  misunderstanding  as  to  the  temper  of 

the  majority  of  the  nation. 

On  December  12  a  new  bill  was  introduced  consider- 
ably improved  by  the  experience  of  previous  debates,  and 
after  another  thorough  discussion  was  passed  by  the 
Commons  on  March  23  and  sent  to  the  House  of  Lords. 
Everybody  knew  that  now  the  real  battle  was  to  come, 
and  the  pressure  on  the  Lords  was  tremendous.  It  was 
generally  understood  that  King  William  IV  had  agreed, 
though  with  reluctance,  to  create  a  number  of  Whig 
peers  large  enough  to  carry  the  bill  through  the  House, 
if  this  should  prove  to  be  the  only  way  in  which  it  could 
be  saved.  On  the  other  hand,  it  must  not  be  forgotten 
that  the  country  had  hardly  yet  recovered  a  reform 
disposition  from  the  reaction  which  the  extravagant 
policies  of  the  French  revolutionists  had  caused,  that 
their  excesses  were  still  fresh  in  mind,  that  only  two 
years  before  there  had  been  another  outbreak  of  revo- 
lutions on  the  continent,  and  that  this  measure  seemed 
to  strike  at  the  very  foundations  of  government  as  they 
had  existed  for  centuries,  a  belief  which  the  radical 
supporters  of  the  Reform  Bill  did  nothing  to  remove. 
The  mind  of  a  conservative  aristocracy,  naturally  timid 
of  experimenting  with  the  unknown,  had  some  defence 
for  itself  on  this  occasion. 

Public  pressure  and  the  known  plans  of  the  govern- 
ment were,  however,  too  strong  for  many  minds  in  the 


CONSTITUTIONAL  HISTORY  177 

House,  which  were  wavering  either  in  opinion  or  as  to 
the  best  policy  for  the  Lords  to  follow.  When  the  vote 
on  the  second  reading  was  taken,  it  proved  that  seven- 
teen peers  had  changed  to  the  affirmative,  that  some, 
including  Wellington,  had  stayed  away,  and  that  a  net 
gain  had  been  made  from  among  the  absentees  of  1831. 
The  second  reading  was  passed  by  a  majority  of  nine. 
The  fate  of  the  measure  was,  however,  undecided 
because  it  had  yet  to  undergo  the  dangers  of  amend- 
ment and  of  adverse  votes  in  committee  of  the  whole, 
and  in  reality  such  a  vote  was  carried  against  the 
ministry  on  May  7. 

It  was  now  evident  that  the  number  of  Whigs  in  the 
House  of  Lords  must  be  increased  to  a  working  majority 
or  the  bill  be  abandoned,  and  the  cabinet  asked  of  the 
king  the  fulfillment  of  his  promise  to  create  peers, 
offering  him  the  alternative  of  their  resignation.  It 
seems  clear  now  that  the  king  had  never  agreed  to 
increase  the  membership  of  the  House  of  Lords  by  so 
large  a  number  as  the  ministers  thought  necessary.  He 
was  himself  conservatively  minded  and  somewhat  afraid 
of  the  reform,  though  on  the  whole  loyal  to  the  ministry, 
as  his  constitutional  position  demanded.  When  brought 
face  to  face  with  the  necessity  of  swamping  the  majority 
in  the  House  of  Lords  in  order  to  carry  the  bill>  he 
could  not  bring  himself  to  act  and  instead  accepted  the 
resignation  of  the  cabinet. 


178  OUTLINE  SKETCH  OF  ENGLISH 

It  then  became  the  practical  question  whether  the 
Tory  party  in  support  of  the  action  of  the  king  could 
form  a  cabinet  which  would  be  able  to  carry  on  the 
business  of  the  country,  including  some  measure  of 
electoral  reform  which  it  was  now  clear  to  everybody 
must  be  adopted.  The  duke  of  Wellington  made  the 
attempt  to  construct  the  ministry,  but  Sir  Robert  Peel, 
who  was  indispensable,  and  others  refused  to  serve;  the 
House  of  Commons  passed  a  vote  of  confidence  in  Lord 
Grey's  cabinet  by  a  large  majority;  and  renewed  public 
excitement  gave  warning  of  trouble.  After  a  few  days 
of  hard  effort,  Wellington  was  obliged  to  inform  the 
king  that  he  could  do  nothing  and  advised  him  to  recall 
Earl  Grey.  William  was  forced  to  yield,  though  yield- 
ing meant  agreeing  to  the  cabinet's  demands.  He 
attempted  in  vain  to  persuade  them  to  consent  to  im- 
portant modifications  of  the  bill,  but  he  gave  them  his 
promise  in  writing  to  create  as  many  peers  as  might  be 
necessary.  Then  of  his  own  motion  he  took  a  further 
step  of  more  doubtful  propriety  constitutionally  which, 
though  not  objected  to  at  that  time,  certainly  would  be 
today,  by  directing  his  private  secretary  to  suggest  to 
Wellington  and  certain  others  that  all  difficulties  would 
be  removed  by  their  absenting  themselves  from  the 
House  when  the  vote  took  place.  This  course  had  been 
already  resolved  upon  by  many  and  the  bill  was  finally 
allowed  to  pass  by  a  large  majority. 


CONSTITUTIONAL  HISTORY  179 

It  has  seemed  worth  while  to  relate  the  history  of  this 
episode  in  such  fulness  because  there  is  no  case  in  which 
are  illustrated  in  so  many  points  of  detail  the  practical 
workings  of  the  cabinet  system  of  government  by  a 
responsible  ministry,  which  is  the  especially  charac- 
teristic result  in  the  constitution  whose  historical  devel- 
opment we  have  been  following.  From  1832  to  the 
present  time  the  operation  of  this  system  has  remained 
the  same  with  only  slight  modifications,  which  will  be 
noticed  later.  The  relation  to  one  another  of  three  of 
the  great  factors  in  the  government  is  clearly  brought 
out  in  the  history  of  the  passage  of  the  Reform  Bill  and 
that  of  the  fourth  is  implied.  The  king,  the  lords,  and 
the  cabinet  are  shown  as  they  operate  together,  not  of 
course  in  the  business  details  of  administration,  but  in 
the  higher  determination  of  government  policy  and  the 
foundation  of  all  in  the  House  of  Commons  is  indicated. 
The  king  has  ceremonial  and  social  functions  to 
perform  which  are  of  great  importance  in  an  old  society 
which,  however  democratic  politically,  is  still  aristo- 
cratic in  social  spirit,  but  in  the  determination  of 
government  policy  upon  any  measure  his  position  is 
fairly  shown  in  the  relation  of  William  IV  to  the  pas- 
sage of  the  Reform  Bill.  He  cannot  insist  that  the 
ministry  change  the  details  of  a  measure  to  make  it 
accord  more  nearly  with  his  own  views.  He  may 
present  his  views  to  the  cabinet,  either  orally  through 


180  OUTLINE  SKETCH  OF  ENGLISH 

some  member  or  in  writing,  and  urge  their  acceptance, 
and  they  will  always  be  considered  respectfully  and 
fully.  In  matters  of  form,  as  in  the  famous  case  of  the 
note  of  Lord  Palmerston's  government  to  Washington 
on  the  Trent  affair  in  our  Civil  War,  which  was  modified 
at  the  suggestion  of  Queen  Victoria,  or  in  unessential 
details,  the  advice  of  the  sovereign  may  often  be  ac- 
cepted, but  if  the  cabinet  decides  against  his  views  he 
must  yield. 

In  William  IV 's  time  when  the  ministry  asked  of  the 
king  an  act  to  which  he  was  strongly  opposed,  it  was 
thought  his  right  to  accept  their  resignations  and  to  try 
the  experiment  of  forming  a  government  which  would 
not  require  such  an  act  of  him.  But  when  the  leaders 
of  the  king's  way  of  thinking,  from  whom  the  new 
cabinet  must  be  made,  came  to  the  conclusion  that  no 
government  could  be  formed  which  could  carry  on  the 
business  of  the  country,  then  the  king  must  abandon  the 
attempt.  It  is  hardly  likely  that  any  student  of  the 
British  constitution  would  deny  the  king  the  same  right 
at  the  present  day,  but  the  elimination  of  the  king  from 
the  practical  government  of  the  country  in  thought  and 
habit  has  gone  so  far  since  1832,  that  it  is  exceedingly 
doubtful  if  any  sovereign  will  ever  try  the  experiment 
again.  The  attempt  would  be  from  the  start  so  hopeless 
and  public  excitement  so  great,  for  it  would  only  be 
made  on  a  question  of  great  importance,  that  the  king 


CONSTITUTIONAL  HISTORY  181 

would  probably  always  yield  rather  than  take  an  appeal 
against  the  cabinet. 

It  may  be  said  without  qualification  that  William's 
conduct  in  allowing  his  views  about  the  Reform  Bill  to 
become  known  would  be  thought  improper  in  a  sovereign 
of  today.  Theoretically  the  king  is  supposed  to  have  no 
political  opinion  but  that  of  his  ministers,  and  it  would 
be  a  serious  breach  of  etiquette  for  an  English  political 
speaker  to  quote  the  king  in  support  of  his  argument. 
This  principle  is  very  correctly  stated  in  a  letter  of 
Edward  VII  's  which  has  been  published.  When  he  was 
asked  in  writing  as  to  the  truth  of  a  rumor  that  he 
was  opposed  to  any  change  in  the  policy  of  free  trade, 
he  replied:  "The  king  never  expresses  any  opinion 
on  political  matters  except  on  the  advice  of  his  respon- 
sible ministers,  and  therefore  the  statement  must  be 
inaccurate. ' ' 

The  only  political  function  which  the  king  can  per- 
form is  to  support  his  cabinet  loyally  and  completely 
in  such  ways  as  are  possible  to  him,  which  are  not  many. 
Much  was  said  during  the  reign  of  Edward  VII  of  the 
activity  of  the  king  in  the  field  of  foreign  relations,  and 
it  is  quite  possible  that  he  may  often  serve  as  a  particu- 
larly useful  ambassador  because  of  the  peculiar  access 
he  may  have  to  the  inner  circles  of  government.  As  Mr. 
Gladstone  has  said:  "personal  and  domestic  relations 
with  the  ruling  families  abroad  give  openings,  in 


182  OUTLINE  SKETCH  OF  ENGLISH 

delicate  cases,  for  saying  more,  and  saying  it  at  once 
more  gently  and  more  efficaciously  than  could  be  ven- 
tured in  the  more  formal  correspondence  and  ruder 
contacts  of  governments."  It  is  certain  however  that 
in  such  a  mission  the  king  could  take  no  position  which 
had  not  been  previously  agreed  upon  or  which  was  not 
in  harmony  with  the  policy  of  his  government. 

The  last  work  which  was  necessary  in  bringing  the 
nominal  sovereign  into  so  complete  harmony  with  the 
real  sovereign  in  the  practical  carrying  on  of  govern- 
ment was  done  by  Queen  Victoria  in  the  course  of  her 
long  reign.  Her  letters,  which  have  been  published, 
reveal  in  how  many  ways  and  with  what  sympathetic 
understanding  this  work  was  carried  on,  and  Queen 
Victoria's  personal  place  in  the  future  history  of  Eng- 
land may  very  likely  be  determined  more  by  her  assist- 
ance in  this  development  than  by  anything  else  she  did. 
So  entirely  is  the  British  sovereign  at  present  in  harmony 
with  the  constitution  that  it  is  very  possible  that  the 
question  of  the  government's  remaining  in  name  a 
monarchy  or  being  changed  in  form  into  a  republic  will 
be  determined  by  other  than  political  considerations. 

More  decided  and  dramatic  changes  have  taken  place 
in  the  relation  of  the  House  of  Lords  to  the  other  factors 
in  government  than  in  the  case  of  the  kingship,  and  yet 
all  the  changes  which  have  occurred  were  virtually 
involved  in  the  position  of  the  House  as  it  was  revealed 


CONSTITUTIONAL  HISTORY  188 

in  the  struggle  over  the  Reform  Bill.  That  struggle 
clearly  showed  that  the  Lords  might  safely  oppose  the 
popular  will,  as  expressed  by  the  House  of  Commons, 
to  a  certain  point  but  not  beyond  it.  Their  first  rejec- 
tion of  the  Bill  was  clearly  their  constitutional  right, 
an  appeal  to  the  people  with  the  question :  Is  this  your 
deliberate  and  mature  desire?  Their  second  rejection, 
after  a  general  election  upon  the  specific  question  had 
declared  the  popular  will  unmistakably,  was  of  more 
doubtful  propriety;  and  the  third  rejection  after  con- 
tinued evidence  of  a  national  determination  certainly 
endangered  their  historical  position.  What  followed, 
the  determination  to  coerce  the  House  by  the  creation 
of  peers,  the  failure  of  the  king's  attempt  to  avoid  the 
necessity,  and  the  final  acceptance  of  the  bill  as  the  only 
way  of  escape,  revealed  for  the  first  time  the  fact  that 
the  .long  progress  towards  the  realization  of  the  sover- 
eignty of  the  people  in  government  had  overcome  the 
aristocracy  as  well  as  the  king. 

A  general  understanding  of  this  fact  was  however 
only  slowly  reached.  A  few  years  later,  on  the  repeal 
of  the  corn  laws,  the  protectionist  legislation  in  the 
interest  of  the  landlord  class,  the  House  of  Lords  was 
strongly  tempted  to  resist  the  reform.  Only  the  great 
influence  of  the  duke  of  Wellington,  who  explained  to 
the  House  clearly  and  for  the  first  time  the  powerlessness 
to  which  it  had  been  reduced  in  the  consitution,  pre- 


184  OUTLINE  SKETCH  OF  ENGLISH 

vented  a  repetition  of  the  experiences  of  the  Reform 
Bill.  From  that  time  on  to  near  the  end  of  the  century, 
it  was  the  custom  to  say  that  the  House  of  Lords  served 
the  purpose  of  a  brake  on  the  wheel  of  too  rapid  ad- 
vance, served  to  make  sure  that  a  reform  was  really 
demanded  by  the  mature  judgment  of  the  country. 
Before  the  close  of  Victoria's  reign,  however,  the  com- 
plaint became  very  frequent  that  the  brake  was  applied 
only  to  the  measures  of  a  Liberal  ministry,  never  to  those 
sent  up  by  a  Conservative  cabinet.  Although  the 
Liberals  during  these  years  had  raised  more  men  to  the 
peerage  than  the  Conservatives  had  done,  it  had  yet 
been  found  exceedingly  difficult  to  keep  a  family  liberal 
in  the  atmosphere  of  the  Lords.  The  Earl  of  Rosebery 
a  few  years  ago  declared  in  a  speech  that  in  his  expe- 
rience as  Liberal  leader  of  the  House  he  had  never  been 
able  to  count  with  certain  confidence  on  more  than  thirty 
votes  in  a  membership  of  over  six  hundred. 

It  was  a  growing  sense  of  the  unfairness  of  this 
situation  and  of  the  danger  of  a  permanent  rejection 
of  some  important  measure  with  its  probable  effects  in 
public  excitement,  enforced  and  deepened  by  recent 
experiences  in  the  adoption  of  tax  reform  measures,  that 
led  to  the  passage  of  the  Parliament  Bill  of  1911.  If 
we  regard  the  English  constitution  with  special  refer- 
ence to  the  character  of  its  long  historical  development, 
there  is  nothing  revolutionary  about  this  measure.  It 


CONSTITUTIONAL  HISTORY  185 

takes  away  the  power  of  the  House  of  Lords  to  post- 
pone for  more  than  two  years  the  enactment  of  a  bill 
passed  by  the  House  of  Commons  which  it  has  been 
made  clearly  manifest  during  that  time  that  the  public 
opinion  of  the  nation  demands.  This  is  doing  no  more 
than  to  describe  in  statute  form,  with  the  time  of  delay 
definitely  measured  out,  the  position  which  the  passage 
of  the  Reform  Bill  of  1832  had  shown  was  really  that 
of  the  Lords  in  the  constitution,  and  this  position  was 
clearly  the  logical  result  of  the  previous  development. 
The  power  of  the  Lords  was  as  much  involved  in  the 
seventeenth-century  struggle  with  Charles  I  and  James 
II  as  was  that  of  the  king.  The  final  triumph  of  the 
sovereignty  of  the  people  demanded  as  complete  and 
cordial  a  recognition  of  the  results  from  the  House  of 
Lords  as  from  the  crown. 

The  position  of  the  cabinet  both  in  ordinary  action 
and  in  times  of  crisis  is  illustrated  with  equal  fulness 
in  the  passage  of  the  Reform  Bill.  This  date,  1832,  is 
the  earliest  to  which  we  can  assign  with  certainty  the 
completion  of  the  cabinet  system  in  all  its  working 
details,  though  it  is  very  likely  true  that  a  somewhat 
earlier  test,  had  it  been  applied,  would  have  found  its 
practical  operation  as  fully  understood.  The  Reform 
Bill  was  a  government  measure.  That  is,  it  was  framed 
by  the  ministry,  introduced  by  one  of  its  members,  and 
remained  in  his  charge  during  its  passage.  If  it  should 


186  OUTLINE  SKETCH  OF  ENGLISH 

be  defeated,  or  if  an  amendment  upon  a  vital  point 
should  be  carried  against  the  ministry,  then  the  cabinet 
must  either  resign  or  appeal  to  the  country  for  its  sup- 
port upon  the  issue  by  dissolving  Parliament  and 
bringing  on  a  general  election.  A  new  election  can  be 
the  cabinet's  choice  only  under  a  heavy  responsibility. 
An  appeal  to  the  country  upon  insufficient  grounds, 
without  some  evidence  of  general  support,  or  merely  to 
save  the  ministry  time,  would  be  sure  to  be  followed  in 
the  election  by  severe  condemnation,  but  in  this  case  the 
government  had  every  reason  to  believe  that  the  country 
was  behind  it,  and  the  event  proved  the  opinion  correct. 
A  greatly  increased  majority  for  the  cabinet  was  re- 
turned by  the  electors,  and  the  vote  was  considered  a 
mandate  from  the  country  to  go  on  with  the  measure. 

On  the  defeat  of  the  second  bill  in  the  House  of  Lords, 
the  case  was  different.  An  election  had  lately  been  held 
and  the  government  had  still  a  large  majority  in  the 
Commons.  An  appeal  to  the  country  was  unnecessary 
and  would  have  been  improper.  Instead  the  cabinet 
prorogued  Parliament  to  permit  a  reintroduction  of  the 
bill  in  a  new  session.  When  the  government  was  again 
defeated  on  an  amendment  in  the  Lords,  matters  came 
to  a  crisis  which  illustrates  the  action  of  the  cabinet 
at  such  a  time.  In  asking  the  king  to  take  a  step,  the 
creation  of  peers,  which  it  was  known  that  he  was  very 
reluctant  to  take,  the  prime  minister  offered  him  at  the 


CONSTITUTIONAL  HISTORY  187 

same  time  the  alternative  of  the  cabinet's  resignation. 
At  that  time,  whatever  might  be  done  today,  the  king 
chose  that  alternative,  but  while  the  attempt  to  form 
a  cabinet  of  the  opposite  party  was  made,  the  old  cabinet 
remained  in  office  and  carried  on  the  routine  business 
of  the  government.  When  the  king  was  obliged  to 
admit  that  his  attempt  had  failed,  it  resumed  its  position 
as  cabinet  with  reference  to  Parliament,  but  now  with 
the  certainty  that  its  advice  would  be  accepted  by  the 
king.  The  crisis  reveals  also  what  it  is  in  the  British 
system  which  keeps  a  cabinet  in  power  or  turns  it  out 
of  office.  It  is  its  ability  or  inability  at  any  given  time 
to  determine  and  direct  the  policy  of  the  government. 
If  the  House  of  Commons  will  do  business  with  the 
cabinet,  then  it  goes  on;  if  the  House  of  Commons  will 
not  do  business  with  it,  no  other  power  can  maintain  it 
in  office.  If  a  ministry  should  attempt  to  retain  power 
in  the  teeth  of  a  hostile  House  of  Commons,  the  business 
of  government  would  shortly  fall  into  chaos  and  the 
attempt  would  mean  revolution.  But  with  the  House  of 
Commons  and  the  opinion  of  the  nation  against  it,  no 
ministry  would  ever  make  the  experiment.  This  is  the 
whole  theory  of  government  by  a  responsible  ministry. 
The  House  of  Commons  reflects  the  opinion  of  the  people 
in  regard  to  the  policy  proposed  by  the  government  and 
its  judgment,  which  is  the  judgment  of  the  nation,  is 
final  in  the  question  before  it. 


188  OUTLINE  SKETCH  OF  ENGLISH 

The  position  of  the  House  of  Commons  has  been 
already  clearly  indicated.  It  supports  the  ministry  so 
long  as  the  policy  of  the  ministry  has  the  support  of 
public  opinion.  In  times  of  crisis  it  may  hold  up  the 
hands  of  the  cabinet  by  a  direct  vote  of  confidence, 
which  is  equivalent  to  a  formal  declaration  to  all  oppo- 
nents that  the  country  is  behind  the  government 's  policy. 
If  public  opinion  turns  against  that  policy,  correspond- 
ing changes  will  take  place  in  the  House  of  Commons 
and  then  in  a  crisis  conceivably  the  House  may  adopt  a 
vote  of  want  of  confidence  which  is  a  formal  declaration 
to  the  cabinet  that  it  has  lost  the  support  of  the  nation 
and  should  resign.  If  the  ministry  should  prove  un- 
willing to  resign,  or  an  attempt  be  made  to  bring  into 
office  a  ministry  which  does  not  have  the  sanction  of  the 
people,  the  House  of  Commons  would  refuse  to  allow 
any  items  of  its  policy  to  be  enacted  into  law,  and  it 
would  be  unable  to  go  on.  It  is  also  of  course  the  busi- 
ness of  the  House  of  Commons  to  discuss  the  measures 
proposed  by  the  government  and  to  amend  and  improve 
them,  but  this  is  a  duty  which  it  still  shares  with  the 
House  of  Lords. 


CHAPTER  XI 


The  results  of  the  Reform  Bill  of  1832  disappointed 
both  its  friends  and  its  opponents.  It  was  not  followed 
by  the  consequences  which  had  been  hoped  or  feared. 
Most  pocket  and  rotten  boroughs  had  been  disenfran- 
chised and  seats  had  been  given  new  centers  of  popu- 
lation, and  these  were  changes  which  had  been  desired. 
But  though  the  number  of  voters  had  been  largely 
increased,  no  important  change  was  manifest  in  the 
character  of  the  membership  of  the  House  of  Commons, 
and  no  evident  progress  had  been  made  towards  democ- 
racy. Corrupt  voting  was  not  entirely  extinguished, 
difficult  formalities  in  the  process  of  registration  kept 
down  the  number  of  voters,  and  the  natural  local  in- 
fluence of  family  and  property  combined  with  all  the 
rest  to  reduce  the  significance  of  the  reform.  The 
radical  supporters  of  the  Bill  had  never  been  satisfied 
with  the  concessions  which  that  measure  secured  and 
it  was  not  long  before  agitation  began  for  supplementary 
reforms.  The  agitators  had  much  material  to  build  with 
in  the  rather  general  discontent  of  the  working  class, 


190  OUTLINE  SKETCH  OF  ENGLISH 

discontent  which  was  quite  as  much  due  to  economic 
as  to  political  conditions. 

The  agitation,  which  reached  its  height  in  1839,  is 
known  in  history  as  the  Chartist  movement  from  the 
so-called  People's  Charter  in  which  the  radical  demands 
were  stated.  These  were  six  in  number :  universal  man- 
hood suffrage;  vote  by  ballot,  to  prevent  intimidation; 
annually  elected  Parliaments,  to  maintain  the  respon- 
sibility of  members;  payment  of  members  of  the  House 
of  Commons,  to  make  possible  the  election  of  poor  men ; 
the  abolition  of  the  property  qualification  for  member- 
ship in  the  House,  for  the  same  reason;  and  the 
formation  of  electoral  districts  of  equal  population. 

The  movement  was  a  failure.  None  of  the  demands 
set  forth  in  the  charter  was  granted  by  Parliament,  but 
the  agitation  did  not  cease  in  other  ways.  The  demo- 
cratic cause  won  gradually  more  and  more  support 
among  the  classes  which  controlled  Parliament,  and  the 
programme  of  the  People's  Charter  may  be  taken  as  an 
epitome  of  the  progress  since  that  day.  Three  of  the 
demands,  the  second,  fourth  and  fifth  as  given  above, 
have  been  fully  secured;  the  first  also,  with  very  slight 
exceptions  which  are  now  about  to  be  swept  away  and 
the  limitation  implied  in  the  word  manhood  dropped 
as  well.  The  sixth  has  been  fully  obtained  in  principle 
and  in  practice  as  nearly  as  some  peculiar  difficulties  of 
the  situation  allow.  The  second  has  not  been  secured 


CONSTITUTIONAL  HISTORY  191 

in  form,  but  the  possible  life  of  a  Parliament  has  been 
reduced  to  five  years,  and  the  responsibility  of  members 
to  their  constituents  more  indirectly  but  sufficiently 
secured.  The  leaders  of  the  movement  of  1839  would 
be  astonished  at  the  England  of  today,  if  they  could 
return  to  it,  and  would  be  obliged  to  say  that,  according 
to  the  standards  which  they  proclaimed,  it  is  a  democ- 
racy, and  that  in  some  things  which  they  had  at  heart, 
the  legal  protection  of  the  workingman  for  instance, 
progress  has  gone  far  beyond  their  wildest  dreams. 

For  many  years  after  the  passage  of  the  Reform  Bill 
of  1832,  there  was  no  serious  movement  towards  a 
further  lowering  of  the  qualifications  for  suffrage.  It 
was  not  until  the  time  of  Lord  Palmerston's  ministry 
during  our  Civil  War  that  it  became  clear  that  further 
reforms  must  be  made.  The  Liberal  party  of  that  day 
was  so  divided  within  its  own  ranks  that  it  was  not  able 
to  perfect  and  carry  a  measure  on  the  subject,  and  the 
second  reform  bill  was  enacted  in  1867  by  the  Con- 
servative ministry  of  Lord  Derby  under  the  leadership 
of  Mr.  Disraeli.  It  was  a  further  advance  along  the  line 
which  had  been  opened  up  in  1832  but  it  was  plainly 
a  temporary  measure  only.  It  struck  out  no  new 
principle  and  it  stopped  halfway  along  the  road.  In 
the  boroughs,  however,  the  suffrage  was  made  almost 
democratic.  It  was  made  possible  at  least  for  anyone 
who  would  take  the  required  trouble,  except  a  very  few, 


192  OUTLINE  SKETCH  OF  ENGLISH 

to  obtain  the  right  to  vote.  The  number  of  voters  was 
increased,  but  the  same  sort  of  tests,  virtually  property 
qualifications,  were  to  be  used  as  in  1832;  and  more 
boroughs  were  deprived  of  representation  and  new  and 
increased  representation  given  to  others  and  to  the 
counties. 

The  interval  between  the  second  and  third  reform  bills 
was  shorter.  Reform  had  lost  its  terrors  during  half  a 
century  in  which  no  national  calamities  had  followed 
from  it.  Society  had  not  been  disrupted;  property  had 
not  been  made  insecure;  and  the  radical  party  had  not 
obtained  permanent  possession  of  the  government.  Not 
merely  in  the  intellectual  convictions  of  men,  but  in 
habits  of  thought  and  action,  democracy  had  made  great 
progress,  and  in  1884  England  was  ready  for  a  step 
which  was  nearly  final.  By  the  act  of  that  year  the 
franchises  which  had  been  given  the  boroughs  in  1867 
were  extended  to  the  counties  and  the  qualifications  for 
the  suffrage  in  these  two  kinds  of  electoral  districts  were 
made,  with  some  slight  exceptions,  uniform  for  the  first 
time  in  Parliamentary  history.  The  change  did  not 
quite  introduce  universal  suffrage.  It  gave  the  right  to 
vote  to  any  man  occupying  a  separate  dwelling  house, 
or  a  part  of  a  house  used  as  a  separate  dwelling,  without 
regard  to  its  value,  and  to  those  occupying  lodgings  of 
the  value  unfurnished  of  ten  pounds  per  year.  A  young 
man  living  in  his  father's  family,  a  servant  living  in  his 


CONSTITUTIONAL  HISTORY  193 

master's  house,  could  not  vote,  but  anyone  earning  day 
wages  or  having  an  equivalent  income  who  was  willing 
to  meet  the  conditions  was  really  enabled  to  do  so. 
Under  this  act  practically  as  many  votes  in  proportion  to 
the  population  have  been  cast  in  a  Parliamentary  as  in 
an  American  congressional  election. 

At  the  same  time  an  act  redistributing  seats  and 
rearranging  electoral  districts  was  passed,  making  far 
more  radical  changes  than  ever  before.  The  principle 
of  the  representation  of  equal  units  of  population  is  not 
quite  so  exactly  realized  in  England  as  in  the  United 
States,  but  there  are  inequalities  with  us,  and  perfect 
exactness  of  measure  is  not  possible  anywhere.  In  the 
meantime  other  acts,  perhaps  less  strictly  constitutional 
in  character,  had  made  the  way  of  democracy  easier. 
The  Australian  secret  ballot  had  been  adopted ;  registra- 
tion had  been  simplified  in  the  interests  of  the  elector; 
and  a  Corrupt  Practices  Act  had  greatly  reduced  the 
opportunity  to  influence  elections  improperly. 

Since  1885  in  everything  except  a  few  points,  less 
important  practically  than  theoretically,  England  has 
been  a  democracy.  It  is  indeed  fair  to  say  that,  so  far 
as  the  immediate  influence  of  public  opinion  upon 
government  policy  is  concerned,  England  has  been  for 
a  generation  more  democratic  than  the  United  States. 
The  cabinet  system  of  government,  the  ministry  respon- 
sible to  the  House  of  Commons,  losing  office  when  it 


194  OUTLINE  SKETCH  OF  ENGLISH 

loses  its  majority,  provides  a  way  by  which  almost 
automatically,  without  waiting  for  a  future  election  day, 
a  change  of  national  judgment  is  carried  out  in  a  change 
of  government  policy,  provided  always  that  opinion 
changes  in  the  House  of  Commons  with  the  change  of 
opinion  outside.  It  has  done  so  certainly  in  the  past  and 
may  be  expected  to  do  so  in  the  future. 

As  a  further  step  in  the  line  of  development  which 
we  are  now  following,  the  progress  of  the  constitution 
towards  democracy,  the  enactment  of  the  Parliament 
Bill  of  1911  should  not  be  overlooked.  It  has  been 
described  already  sufficiently  for  our  purpose,  but  it 
should  be  remembered  in  its  chronological  place  that 
it  did  away  in  law  with  the  power  formerly  possessed  by 
the  House  of  Lords  of  absolute  veto  of  popular  measures 
which  they  had  already  lost  in  theory.  There  was  no 
doubt  natural  reluctance  to  have  the  powerlessness  of 
the  peers  so  bluntly  stated  in  statute  terms,  but  the  law 
really  did  no  more  than  to  remove  all  possibility  of  a 
serious  collision  between  the  two  houses  which  came  so 
near  to  occurring  more  than  once  in  the  nineteenth 
century. 

In  one  particular  the  Parliament  Bill  is  a  distinct 
departure  from  the  ordinary  English  practice.  It  is  the 
embodiment  of  a  constitutional  principle  in  a  statute; 
that  is,  the  principle  is  legalized  in  definite  words  which 
state  exactly  what  shall  and  what  shall  not  be,  an 


CONSTITUTIONAL  HISTORY  195 

approach  on  a  single  point  towards  a  written  constitu- 
tion. In  this  respect  it  is  in  line  with  the  Bill  of  Rights 
of  1689  and  with  some  provisions  of  the  Act  of  Settle- 
ment in  1701,  rather  than  with  the  general  trend  of 
English  history,  which  has  left  the  constitution  to  be 
expressed  in  unwritten  custom  and  convention. 

But  a  written  constitution  is  not  out  of  harmony  with 
English  history,  as  is  shown  by  the  acts  mentioned  and 
by  other  legislation  in  earlier  history  which  has  become 
obsolete.  The  reason  why  the  English  constitution  is 
unwritten  is  not  because  there  is  any  especial  political 
virtue  about  that  form  of  constitution  which  was  fore- 
seen and  chosen.  The  unwritten  constitution  was  as 
little  intended  as  a  Parliament  of  two  houses.  It  was 
an  accident  of  the  situation  and  was  due  to  the  fact 
that  the  work  which  England  was  doing  in  constitution 
making  was  new  to  human  experience.  The  constitu- 
tional future  could  not  be  foreseen  nor  planned  in  detail, 
nor  the  needs  of  government  provided  for  in  advance, 
because  this  road  had  never  been  traveled  before.  The 
constitution  was  slowly  made,  not  according  to  any 
theoretical  ideal,  but  by  finding  a  practical  solution  for 
every  problem  as  it  arose.  The  result  in  each  case  was 
rather  a  way  of  doing  things  than  a  formal  provision, 
though  it  might  be  and  often  was  afterwards  put  into 
statute  form  as  a  single  detail. 

It  would   be   absurd  to  argue   from   England's  un- 


196  OUTLINE  SKETCH  OF  ENGLISH 

written  constitution  that  the  results  of  her  experience 
should  not  now  be  expressed  in  a  written  constitution; 
that  would  be  tor  elevate  an  accidental  attendant  of  past 
growth  into  a  law  of  the  future.  Nor  does  such  a 
formulation  in  writing  of  the  British  constitution,  as 
has  been  made  in  whole  or  in  part  by  so  many  states, 
prevent  among  them  its  steady  enlargement  or  modifica- 
tion by  the  continued  new  creation  of  custom  and 
convention.  The  relation  of  the  president  to  legislation 
in  our  government  is  quite  different  now  from  that 
intended  by  the  constitution,  as  is  that  of  the  Senate  to 
foreign  affairs  and  to  the  government  in  general.  Other 
instances  of  enlargement  or  amendment  without  formal 
enactment  could  easily  be  cited.  The  embodiment  of 
a  principle  in  statute  form  never  prevents  its  modifica- 
tion by  the  development  of  custom  and  precedent  so 
long  as  a  nation  remains  politically  and  institutionally 
alive.  A  written  constitution  is  as  truly  in  harmony 
with  English  history  and  its  methods  of  advance  as  an 
unwritten  one. 

In  America  in  conversation  and  in  discussion  in  print, 
the  question  is  often  raised  whether  England  will  not 
before  long  become  a  republic  in  form,  or  why  she  does 
not  do  so.  It  has  been  reported  that  long  ago,  while  he 
was  still  Prince  of  Wales,  Edward  VII  predicted  that 
he  would  be  the  last  king  of  England.  If  he  ever  did 
make  such  a  prediction,  there  has  been  since  his  acces- 


CONSTITUTIONAL  HISTORY  197 

sion  no  progress  that  can  be  detected  towards  its  ful- 
fillment. There  is  no  body  of  opinion  in  England  in 
favor  of  such  a  change,  and  it  is  difficult  to  point  out 
any  political  advantage  that  would  be  gained  by  it. 
The  peculiar  and  characteristic  features  of  the  English""1 
constitution  are  certainly  as  easily  adaptable  to  a 
republic  as  to  a  monarchy,  but  such  a  change  of  external 
form  would  not  make  the  actual  government  more 
popular  or  more  democratic.  On  the  other  hand,  as  has 
been  already  said,  there  has  been  a  great  advantage,  in 
the  influence  of  the  British  constitution  on  the  world 
derived  from  the  retention  of  the  monarchy,  and  it  is 
not  yet  clear  that  this  advantage  may  wisely  be  given  up. 
This  may  be  added  that  the  house  of  Windsor  since  its 
accession  has  acknowledged  so  formally  and  so  unre- 
servedly that  it  has  no  title  to  the  throne  except  the  will 
of  the  nation  that  it  will  never  be  likely  to  offer  any 
objection  to  the  change  to  a  republic,  if  it  should  be 
seriously  proposed. 

Perhaps  the  history,  considered  as  constitutional 
history  in  the  strict  sense,  should  close  with  the  Parlia- 
ment Act  of  1911,  but  a  series  of  important  reforms, 
parallel  in  time  with  the  later  steps  towards  democracy, 
has  materially  changed  the  conditions  of  private  life  and 
business  in  England,  and  they  are  important  factors  in 
the  great  change  which  has  taken  place  in  the  atmos- 
phere, spirit  and  significance  of  public  life.  England 


198  OUTLINE  SKETCH  OF  ENGLISH 

has  been  transformed  in  a  hundred  years  in  every 
direction,  and  these  reforms  to  be  briefly  named  are  at 
once  signs  of  the  changes  taking  place  and  essential 
portions  of  them.  The  simplification  of  judicial  pro- 
cedure and  of  the  organization  of  the  courts  might 
properly  perhaps  be  called  constitutional.  Out  of  the 
uninstructed  and  undirected  development  of  the  middle 
ages  the  system  of  criminal  and  civil  justice  descended 
to  the  nineteenth  century  full  of  anomalies  and  crudi- 
ties, with  an  intricate  complex  of  courts  of  overlapping 
jurisdiction  and  a  cumbrous  and  dilatory  procedure 
which  favored  numerous  abuses  and  made  litigation 
expensive  and  tedious.  The  practical  results  are  familiar 
to  us  today  through  the  novels  of  Charles  Dickens.  By 
a  series  of  acts  beginning  in  the  first  reform  period  of 
the  century,  the  system  has  been  greatly  simplified  and 
expense  and  delay  greatly  reduced.  There  are  many 
differences  which  strike  one  between  the  organization 
and  administration  of  justice  in  England  and  in  the 
United  States,  but  the  points  of  similarity  are  equally 
striking  in  courts  and  procedure  and  in  the  fundamental 
law  administered. 

The  progress  of  democracy  in  general  government  was 
accompanied  step  by  step  with  the  same  progress  in 
local  government.  The  first  reform  act  on  this  subject 
was  passed  within  two  years  of  the  first  Reform  Bill, 
and  since  that  date  local  and  municipal  government  has 


CONSTITUTIONAL  HISTORY  199 

been  made  over  in  the  interests  of  economy,  efficiency, 
and  popular  control.  About  the  same  time  reforms  in 
the  administration  of  poor  relief  began,  and  a  little  later 
in  the  care  of  public  health,  and  later  still  an  almost 
revolutionary  system  of  public  schools  and  popular 
education  was  organized.  Along  with  these,  other  laws 
were  passed  regulating  work  in  factories,  improving 
other  working  conditions,  and  protecting  the  interest  of 
labor  in  many  ways,  while  by  a  series  of  acts  the  Irish 
church  was  disestablished  and  land  and  other  abuses, 
of  which  the  Irish  had  long  justly  complained,  done 
away  with.  It  would  be  absurd  to  maintain  that  no 
abuses  of  any  kind  or  in  any  direction  remain  to  be 
destroyed,  or  that  the  work  of  the  reform  age  is  finished. 
But  if  a  condensed  statement  of  the  progress  of  the 
nineteenth  century  in  these  ways  seems  like  an  exag- 
geration, the  impression  would  be  incorrect.  The 
advance  has  been  beyond  question  rapid  and  significant, 
and  the  England  of  today  is  a  different  country  from 
the  England  which  emerged  from  the  war  with  Napoleon 
a  hundred  years  ago. 

As  this  writing  comes  to  an  end  in  the  midst  of  the 
great  world  war,  all  minds  are  occupied  as  much  or  more 
with  the  future  as  with  the  past.  Of  the  great  changes 
which  seem  foreshadowed  by  recent  events,  one  directly 
concerns  our  subject — the  federation  of  the  British 
Empire.  The  British  colonial  empire  was  slowly  formed, 


200  OUTLINE  SKETCH  OF  ENGLISH 

mainly  in  the  eighteenth  and  nineteenth  centuries,  and 
like  the  British  constitution  with  no  foreseen  purpose 
and  no  definite  adaptation  of  means  to  end.  The 
process  was  for  a  long  time  drift  and  accident,  and  only 
by  slow  degrees  and  by  hard  experience  did  England 
learn  how  to  govern  her  colonies.  The  lesson  was  not 
really  learned  until  after  the  Canadian  Rebellion  of 
1837,  but  it  was  in  the  end  thoroughly  learned. 

From  the  middle  of  the  last  century  an  even  more 
profound  change  has  been  taking  place,  a  change  in  the 
meaning  of  empire  from  the  idea  of  dominion  and  power 
and  exploitation  to  the  idea  of  national  expansion,  a 
change  which  may  be  characterized  in  a  word  by  saying 
that  the  term  "British  empire"  is  dropping  out  of 
political  discussion  and  the  term  "British  Common- 
wealth of  Nations"  is  taking  its  place.  The  great 
British  colonies  have  become  self-governing  republics, 
democratic  in  character,  and  practically  independent  in 
everything  that  concerns  their  government  and  law.  At 
least  it  is  clearly  recognized  that  there  is  nothing  in 
which  the  power  of  coercion  remains  to  the  home 
government.  In  the  meantime  other  bonds  than  legal 
ones  have  grown  stronger  and  these  have  been  tested 
and  further  strengthened  by  the  war. 

Soon  after  the  middle  of  the  nineteenth  century  these 
new  ideas  of  empire  and  union  began  to  find  expression 
in  the  discussion  of  imperial  federation,  of  plans  for 


CONSTITUTIONAL  HISTORY  201 

a  united  government  of  the  British  commonwealth  of 
nations.  As  yet  these  plans  have  led  to  no  practical 
result  but  they  have  grown  steadily  in  definiteness  of 
purpose  and  detail,  and  the  Boer  War  and  the  present 
war  have  given  them  great  forward  impulse.  The 
proposal  of  a  common  constitution  for  so  large  a  portion 
of  the  earth's  surface  makes  a  powerful  appeal  to  the 
imagination.  Possibilities  to  be  attained  and  problems 
to  be  solved  in  constitution  making  for  the  British  world 
seem  vaster  than  ever  dreamed  of  heretofore.  When 
the  obvious  difficulties,  however,  of  bringing  together 
in  one  government  dwellers  in  five  continents  are  con- 
fronted with  the  tremendous  progress  in  the  annihilation 
of  space  and  time  since  1787,  they  do  not  seem  relatively 
greater  than  those  attacked  and  overcome  in  the  forma- 
tion of  the  American  constitution.  No  actual  consti- 
tution has  yet  been  proposed  in  any  official  way  nor  any 
official  suggestion  made  looking  towards  the  making  of 
one,  but  a  history  of  the  English  constitution  may  well 
close  with  the  anticipation  of  this  still  greater  result 
to  come  in  the  not  distant  future  for  it  is  a  normal 
outgrowth  of  the  past  and  the  next  forward  step 
naturally  to  be  expected  in  the  long  development  which 
has  been  sketched. 


INDEX 


"Agreement  of  the  People," 
the,  138  f. 

American  race,  Anglo-Saxon, 
5  f . ;  constitutional  growth 
separates  from  English,  9, 
139  f . ;  constitutional  law,  be- 
ginning of,  136  f.,  138;  con- 
stitution framed,  165  f. 

Anglo-Saxon,  a  composite  race, 
5. 

Appropriations  of  revenue,  Par- 
liamentary, beginning  of, 
72  f . ;  extension  of,  92. 

Bacon,  Francis,  impeachment  of, 
119. 

Balance  of  power,  99. 

Ballot,  Australian,  adopted,  193. 

Baron,  the.  place  in  Norman 
government,  19  ff. ;  attitude 
towards  reforms  of  Henry  IT, 
38  f . ;  insurrection  against 
King  John,  43  f . ;  disappear- 
ance of,  81. 

Bill  of  Rights,  the,  122,  148  ff., 
195. 

British  Empire,  spread  of,  2 ; 
federation  of,  199ff. 

Buckingham,  duke  of,  impeach- 
ment of,  77,  120. 


Cabinet  system,  the  English, 
origin  and  growth,  152  ff ., 
156;  practical  operation  of, 
179  ff.,  185  ff. 

Canada,  government  framed  for 
in  1791,  167. 

Catholics,  plans  of  James  II  for, 
146;  disabilities  removed,  171. 

Celtic  racial  element  in  Anglo- 
Saxon,  5,  13 ;  no  influence  on 
constitution,  13. 

Charles  I,  reign  of,  120  ff.; 
civil  war  under,  132;  trial  of, 
134  f. 

Charles  II,  reign  of,  141  ff., 
153  f. 

Charter,  the  Great,  7,  32,  43  ff., 
55,  80  f.,  89  f.,  120  ff.,  130, 
148,  149;  provisions  and  prin- 
ciples of,  45  ff . ;  the  begin- 
ning of  the  limited  monarchy, 
45;  confirmations  of,  47. 

Charters,  the  Confirmation  of 
the,  67  f . 

Chartist  movement,  190. 

Church,  the  English,  growth  in 
power  after  the  Conquest, 

39  ff . ;  conflict  with  Henry  II, 

40  f . ;  place  in  medieval  gov- 
ernment, 101  f. ;   brought  un- 


204 


INDEX 


der  Parliamentary  control, 
101  ff. 

Civil  rights  of  the  individual  at 
end  of  fifteenth  century,  94  f. 

Coercion  of  government,  the 
right  of,  46  f.,  49,  55,  122, 
130. 

Commons,  House  of,  origin  of, 
59  ff.,  63  f . ;  increase  of  power 
in  fourteenth  century,  64  ff . ; 
in  impeachment  trials,  78 ;  use 
made  of  by  Bichard  II,  84; 
privileges  of,  92,  116f. ;  atti- 
tude in  "Long"  Parliament, 
128  ff.;  sole  authority  after 
execution  of  Charles  I,  137; 
reform  of  representation  in, 
172  ff.,  193;  how  it  controls 
the  cabinet,  187  f. 

Constitution,  sense  in  which  the 
word  is  used,  12,  15;  English, 
elements  united  in,  12  f. ; 
Norman  origin  of,  15;  the 
feudal,  21  f.;  constitutional 
government  becomes  habitual, 
88,  91;  suspension  under  Tu- 
dors,  99  ff. ;  progress  of  in 
seventeenth  century,  112f., 
140,  151,  153;  a  written, 
138  f.,  148,  1951;  spread 
throughout  the  world,  144. 

Contract,  idea  of,  in  feudal  law, 
31  f. ;  use  of  to  check  the 
king 's  power,  32  f .,  44 ;  in 
Bill  of  Rights,  149  f. 

Council,  the,  22,  23  ff.,  34,  83, 
90,  128;  the  germ  of  Par- 


liament, 57;  not  changed  by 
growth  of  Parliament,  59; 
legislation  by,  73  f . ;  orders 
in,  75;  controlled  by  Parlia- 
ment, 87,  92. 
Curia  regis,  22,  34. 

Debate,  freedom  of,  84  f .,  92. 

Democratic  movement  in  seven- 
teenth century,  134  ff.,  150, 
170;  in  the  nineteenth,  168  ff., 
1901,  1931 

Deposition  of  the  king,  right  of, 
89  1,  147  1 

Divine  right  of  kings,  108,  109, 
147. 

Economic  revolution  of  eight- 
eenth and  nineteenth  centu- 
ries, 168  ff. 

Edward  I,  and  taxation,  66  f . 

Edward  II,  growth  of  Parlia- 
ment under,  68 ;  deposition  of, 
90. 

Edward  III,  Parliamentary  tax- 
ation under,  71  ff. 

Elizabeth,  character  of  age  of, 
106  1,  108. 

Empire,  meaning  of,  98,  200  1 

England,  a  democratic  republic, 
10;  likeness  and  contrast  to 
France  in  constitutional  his- 
tory, 36  f . ;  international  po- 
sition in  sixteenth  century, 
981 

England,  New,  effect  of  Charles 
I's  policy  upon,  122  ff. 


INDEX 


205 


Equity  system,  beginning  of,  35, 

74. 

Europe,  domination  of,  98. 
Exchequer,  origin  and  business 

of,  27  f . 

Feudalism,  introduced  by  Nor- 
man Conquest,  17  ff. ;  charac- 
ter of  Anglo-Saxon,  18;  rela- 
tion to  beginning  of  limited 
monarchy,  44;  its  conception 
of  the  state,  52  f . ;  decline  of, 
52,  58,  60. 

Foreign  policy,  democratic  con- 
trol of,  112;  the  king  in  rela- 
tion to  at  present,  181  f. 

Fortescue,  Sir  John,  on  the 
king's  place  in  government, 
88  f. 

France,  likeness  and  contrast  to 
England  in  constitutional  his- 
tory, 36  f. 

George  I,  and  the  constitution, 
159,  160. 

George  II,  unable  to  check  cab- 
inet development,  159  f. 

George  III,  reign  and  policy, 
161  ff. ;  and  the  American 
colonies,  162;  failure  of  his 
policy,  163. 

German  Empire,  relation  of  con- 
stitution to  English,  3. 

German  source  of  English  insti- 
tutions, 13  ff . ;  institutions  at 
time  of  settlement,  14. 


Habeas  Corpus,  not  in  Magna 
Carta,  45 ;  perfected  in  seven- 
teenth century,  114,  121  £. 

Henry  I,  growth  of  royal  power 
under,  30  f .,  33 ;  coronation 
charter  of,  311,  44,  149; 
growth  of  power  of  church 
under,  40. 

Henry  II,  growth  of  royal 
power  under,  33  ff . ;  his  insti- 
tutional reforms,  34  ff . 

Henry  IV,  85  f . 

Henry  V,  86. 

Henry  VI,  86,  105. 

Henry  VII,  96,  105. 

Henry  VIII,  103,  108. 

Historical  argument,  the,  va- 
lidity of,  115. 

Impeachment,  10,  56,  82 ;  begin- 
ning of  the  process  of,  76  ff . ; 
as  sign  of  progress,  80;  re- 
vival under  James  I,  119f. ; 
after  the  Restoration,  155, 
157  f. 

Impositions,  the,  113,  117. 

Independents,  the,  democratic 
wing  of  Puritan  party, 
134  ff.,  137,  170;  break  with 
the  past,  135,  136. 

"Instrument  of  Government," 
the,  139. 

"Interpreter,"  Cowell's,  117. 

James  I,   character  and  policy 

cf,  108  ff.,  150. 
James  II,  character  and  reign, 

146  ff. 


206 


INDEX 


Japan,  relation  of  constitution 
to  English,  3. 

Jews,  disabilities  removed,  171. 

John,  character  and  history, 
42  ff. 

Judicial  organization,  begin- 
ning of  modern,  34  f . 

Judicial  reform  in  nineteenth 
century,  198. 

Judiciary,  the,  independence  of, 
112,  150  f . 

Jury  trial,  introduction  of, 
34  f . ;  not  in  Magna  Carta, 
45;  as  protection  of  individ- 
ual, 94  f . 

Justices,  itinerant,  established 
by  Henry  II,  34  f . 

King,  the,  place  in  Norman  gov- 
ernment, 21 ;  .power  limited 
by  the  barons,  31  ff. ;  bound 
to  keep  the  laws,  45  f.,  80  f., 
149;  new  conception  of  his 
duty,  53;  can  do  no  wrong, 
77;  perceives  result  of  con- 
stitutional growth,  83 ;  place 
in  government  in  fifteenth 
century,  88  f . ;  left  in  form 
supreme  at  Eestoration,  142  f ., 
155;  position  in  present  gov- 
ernment, 179  ff.  See  Mon- 
archy. 

Lancastrian  period,  constitu- 
tional character  of,  85  ff ., 
90  ff.,  93,  110. 

Laud,  Archbishop,  123,  124,  126. 

Law,  supremacy  of,  5,  122,  130; 


beginning  of,  45  f .,  49 ;  as 
against  the  Stuarts,  109  ff. ; 
James  I  and,  116  ff.;  affirmed 
by  the  Bill  of  Rights,  149  f. 

Legislation,  modern  methods  of, 
beginning,  73  ff.,  92. 

Lords,  House  of,  origin  of,  59; 
in  impeachment  trial,  78;  at- 
titude in  impeachment  of 
Strafford,  129  f . ;  in  the  trial 
of  Charles  I,  135;  position  of 
in  the  constitution,  152, 
182  ff.;  attitude  on  first  Re- 
form Bill,  175  ff. 

Magna  Carta,  see  Charter,  the 
Great. 

Monarchy,  English,  influence  on 
the  world,  10;  origin  and 
character  of  Saxon,  14;  Nor- 
man, introduced  by  the  Con- 
quest, 17;  growth  in  power 
after  the  Conquest,  28  ff., 
37  f . ;  beginning  of  the  lim- 
ited, 43,  45,  57,  82;  impeach- 
ment as  expression  of  the  lim- 
ited, 77  f . ;  growth  of  the  lim- 
ited, 91  f.;  in  the  sixteenth 
century,  99  ff.,  142  ff. ;  see 
King. 

Montfort,  Simon  de,  60. 

Nation,  the,  non-existent  in 
eleventh  century,  16;  begin- 
ning as  political  force,  51  ff. ; 
attitude  towards  Tudors, 
100  f . ;  growth  of  in  fifteenth 
century,  105  f . 


INDEX 


207 


Nobility,  rise  of  modern,  81 ; 
factional  attitude  of,  83,  87, 
93,  105. 

Nonconformists,  disabilities  re- 
moved, 171. 

Norman  Conquest,  beginning 
of  our  constitutional  history, 
6 ;  changes  made  by,  16  ff.,  24. 

North,  Lord,  as  minister  of 
George  III,  162. 

Orders  in  Council,  75. 
Oxford,  the  Provisions  of,   51, 
55  f .,  79. 

Parliament,  7;  not  in  Magna 
Carta,  45;  beginning  and 
growth,  57  ff. ;  the  model,  61 ; 
why  of  two  houses,  63;  en- 
largement of  fundamental 
law  by,  80  ff. ;  becomes  guard- 
ian of  the  constitution,  82 ; 
attacked  by  Richard  II,  84  f . ; 
growth  of  power  in  fifteenth 
century,  91  ff. ;  under  the  Tu- 
dors,  100  f.,  103  ff.;  as  op- 
posed to  the  Stuarts,  109  ff. ; 
supremacy  of  after  1660, 
141  ff. 

Parliament,  the  "Short,"  127; 
the  "Long,"  128  ff.,  140; 
legislation  of,  131  f. ;  Presby- 
terians expelled  from,  134; 
the  "Bump,"  134,  137. 

Parliament  Bill,  of  1911,  184  f., 
1941 

People,  the,  non-existent  in 
eleventh  century,  16;  devel- 


opment of  in  fifteenth  cen- 
tury, 105  f . 

Petition  of  Eight,  the,  114, 
120  ff. 

Pitt,  William,  earl  of  Chatham, 
in  the  ministry  against  the 
king's  will,  161;  George  III 
and,  162. 

Pitt,  William,  the  Younger, 
struggle  of  with  the  House  of 
Commons,  164  f. 

Precedents,  historical,  use  of  in 
seventeenth  century,  113  ff. 

Presbyterian  party,  political  at- 
titude of,  Scotch,  108,  126, 
133  f.;  expelled  from 
"Long"  Parliament,  134. 

Primogeniture,  law  of,  90. 

Puritan  party,  effect  of  Charles 
I 's  policy  upon,  122  ff . ;  con- 
stitutional ideas  of,  123  f., 
132,  137;  in  America,  124, 
136,  140;  reform  of  Parlia- 
mentary representation,  172. 

Race,  meaning  of  in  history,  5  f . 

Reform  Bill,  of  1832,  171  ff., 
185,  189;  of  1867,  191  f.;  of 
1884,  192  f . 

Reformation,  the,  international 
effect  of,  99;  the  English, 
102  f. 

Representative  system,  origin  of, 
59,  62. 

Responsible  ministry,  the,  10,  51, 
55  f.,  112,  144  f.,  153,  156; 
impeachment  and,  77  f . ;  ori- 
gin of  the  modern,  157;  de- 


208 


INDEX 


velopment  of,  157  ff.,  165; 
why  not  in  American  consti- 
tution, 165  f . ;  not  understood 
at  end  of  eighteenth  century, 
165  ff. ;  practical  operation  of, 
179  ff.,  187. 

Bestoration,  the,  141  f . ;  com- 
promise made  at,  142  ff.,  153. 

Revolution,  American,  163. 

Eevolution  of  1688,  147,  157. 

Richard  II,  his  attempt  against 
the  constitution,  83  ff .,  93 ; 
revolution  against,  85. 

Richard  III,  84,  93,  96. 

Roman  Empire,  influence  of,  1 ; 
conception  of,  98;  sovereignty 
in,  119;  Roman  influence  on 
English  constitution,  13  f . 

Roses,  Wars  of  the,  87,  93,  96, 
105. 

Settlement,  act  of,  158  f.,  195. 

Sheriff,  the,  22  f.,  27.     - 

Slavery,  negro,  in  British  colo- 
nies, abolished,  171. 

Sovereignty  of  the  people,  8,  56, 
89,  118,  133,  135  f.,  148,  150, 
170,  183,  185;  declared  by 
Thomas  Hooker  in  Connecti- 
cut, 135  f. 

Sovereignty  in  the  state,  111  f., 
113,  1181,  129,  143,  153;  in 
Parliament  after  1660,  142  f. 

Strafford,  the  earl  of,  127;  his 
impeachment,  1 29  f . 

Stuart  period,  108  ff. 


Succession  to  crown,  right  of 
Parliament  over,  89  f .,  94,  96, 
109,  147. 

Suffrage,  Parliamentary,  92, 
172  ff.,  189,  191  ff. 

Taxation,  consent  to,  not  in 
Magna  Carta,  45;  brought 
into,  67;  growth  of  Parlia- 
ment 's  power  over,  65  ff . ; 
right  of  House  of  Commons 
in,  92;  non-Parliamentary  by 
Charles  I,  124  f. 

Treason,  against  king  or  nation? 
129  f.,  134  f. 

Tudors,  the,  age  of,  96  ff.,  110. 

United  States,  the,  independ- 
ent, 2;  share  in  English  his- 
tory, 4;  Anglo-Saxon  in  race, 
5  f . ;  impeachment  in,  76 ; 
constitution  of,  *138. 

Victoria,  Queen,  her  relation  to 
government,  180,  182. 

Walpole,  Sir  Robert,  develop- 
ment of  cabinet  under,  160  f. 

William  I,  the  Conqueror,  16, 
34,  39. 

William  II,  Rufus,  increases  the 
royal  power,  30. 

William  III,  147,  152  ff.,  162. 

World  domination,  98. 

York,  House  of,  title  to  crown, 
90,  94 ;  the  constitution  under, 
93  f.,  110. 


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